THE RIGHT TO REPRESENTATION

One of the most valuable protections a worker has is the right to representation when called in by the boss. A Steward’s presence as a Union advocate can mean the difference between someone being railroaded out of a job and having justice prevail.

Weingarten rights are key when discussing representation. Weingarten rights are named after a landmark 1975 Supreme Court case, NLRB  v. J. Weingarten, Inc. Through court decisions and legislation, this protection now covers almost all private sector and federal employees and many state and local government employees.

Under Weingarten, in order for a worker to have the legal right to a union representative during a meeting with management, all of the following conditions must be met:

THE MEETING IS AN INVESTIGATORY INTERVIEW

This means that the employee is expected to answer questions in connection with an inquiry into possible wrongdoing or unacceptable behavior. Weingarten rights do not cover meetings where the communication is one way; that is, when the purpose is merely to convey information to an employee or to notify an employee of a decision already made regarding discipline. Keep in mind also that discussions of job performance do not automatically include the right to representation. That right exists only if the meeting also involves giving answers to questions that may then lead to a disciplinary action.

DISCIPLINARY ACTION MAY RESULT FROM THE MEETING

The legal standard here is that a disciplinary action-of any severity-is one possible result of the meeting. Since what matters is whether disciplinary action may result, it legally makes no difference that the supervisor who calls the employee in may not be intending to take disciplinary action.

THE EMPLOYEE REASONABLY BELIEVES THAT DISCIPLINARY ACTION MAY RESULT

The law generally requires only that the employee has a reasonable belief that he or she may be disciplined. Whether that belief is reasonable or not is a judgment call, and will be determined based on all the circumstances surrounding the meeting: Has the supervisor previously raised the possibility of discipline? Have other employees been disciplined for what this individual is accused of? Is the employee working under the threat of a performance warning letter?

A REQUEST IS MADE FOR REPRESENTATION

Weingarten rights differ in one crucial way from the Miranda rights. Employers have no legal obligation to advise workers of their rights before questioning begins. It is up to the individual employee to know their rights, and to state that no questions will be answered until a union representative arrives.

If a request for representation is turned down and an employee is forced to answer questions, legal relief can be pursued either through a contractual grievance or by filing an unfair labor practice.

THE WEINGARTEN DECLARATION

For your own protection, you should read or hand the following statement to management before the start of any meeting that could lead to discipline:

"If the discussion I am being asked to enter could in any way lead to discipline, termination, or impact my personal working conditions, I ask that a union steward be present.  Unless I have this union representation I respectfully choose not to participate in this discussion."

BAIT AND SWITCH

One tactic management has used to ambush an unaware employee is to start a routine department meeting and then change the topic to the employees possible wrongdoing. At this point, the employee can request a Steward, and ask that the meeting not go on until the Steward is present.  In the situation just mentioned, the employee must be strong and remind management of their Weingarten rights.