Weingarten Rights

Management and Employee Rights and
Responsibilities in Disciplinary Meetings

When does an employee have the right to have a representative present
during meeting with supervisors? This is an often misunderstood topic
for both employees and administrators. This handout is not designed to
turn employees into “armchair attorneys” or to circumvent negotiated
contracts and policies; it is intended to clarify the rights and
responsibilities of all parties involved in matters that may become
disciplinary in nature. These rights are derived from federal decisions
and apply across the country in both bargaining and non-bargaining
states.

Part I – The Weingarten Decision and the Right to Representation

“HEY, THE BOSS JUST CALLED ME INTO THE OFFICE…”

By Steve Diamond, Institute of Industrial Relations University of
California, 1984.

In June 1972, Leura Collins, a lunch-counter sales clerk for the J.
Weingarten, Store No. 98, in Houston, Texas, was called into her
Manager’s office and interrogated by the Manager and an undercover
investigator employed by the store. Unknown to Collins, the investigator
had had Collins under surveillance for the previous two days. He had
been investigating a report that Collins was stealing money from the
lunch counter cash register. His investigation had turned up no evidence
of wrongdoing, but the store manager had received a report from another
employee that Ms. Collins ‘had purchased a box of chicken that sold for
$2.98, but had placed only $1.00 in the cash register.’

During the questioning regarding this incident, Ms. Collins requested
that her shop (union) steward or another union representative from her
union, Local 455 of the Retail Clerks, be called into the interrogation
session. Her repeated requests for such assistance were denied. In
response to questions about the chicken, Ms. Collins explained that she
had only taken a dollar’s worth of food, but had used a larger box to
place it in because the store had run out of smaller boxes. The
investigator left the office and confirmed this fact with other store
employees. Upon return to the interview he ‘told Collins that her
explanation had checked out, that he was sorry if he had inconvenienced
her, and that the matter was closed.’

Collins broke down and began to cry. She ‘blurted out that the only
thing she had ever gotten from the store without paying for it was her
free lunch.’ The manager and investigator were surprised by this
admission, because free lunches were not allowed at this particular
store. They once again began an interrogation of Collins. She once again
requested the presence of her shop steward, and the store manager again
denied her request.

During the course of the questioning the investigator asked Collins to
sign a statement that she owed the store approximately $160 for lunches.
She refused to sign the statement. Collins pointed out that in Store No.
2 of the Weingarten chain, where she had worked for nine years prior to
her transfer to No. 98, free lunches were regular policy. When
Weingarten, Inc., headquarters confirmed this fact, the interrogation
was ended and Collins left the store manager’s office. Though told to
keep the matter to herself, Collins, ‘reported the details of the
interview to her shop steward and other union representatives’ and an
unfair labor practice charge was filed.

On February 19, 1975, the [Supreme] Court issued a decision,” the
employee [Collins] had been the victim of an unfair labor practice (NLRB
v. J. Weingarten, 420 U.S. 251). An important new right for workers came
out of this decision: an employee may be represented by the union at an
investigatory interview with his/her employer when the employee
reasonably believes that the interview may lead to disciplinary action.

The U.S. Supreme Court issued in their Weingarten decision guidelines
that clarify a unionist’s right to representation during an
investigatory interview.

1. The employee must request that a union representative be called into
the meeting with management.

2. There must be a reasonable belief that discipline will result from
the investigatory meeting.

3. The Court’s decision does not force the employer to interview the
employee. “Though this appears to leave the union and employee a choice
to make, there is, in fact, nothing to be gained by meeting with
management without one’s union representative. An employer who is
serious about resolving a problem should welcome a union’s
participation. The choice, then, remains with the employer.”

4. The employer has no duty to bargain with the union representative at
an investigatory interview. However, the employer cannot force the shop
steward to be silent and the union should take advantage of this to help
the employee as much as possible. (NLRB v. Texaco, Inc., 108 LRRM 2850,
2851, Oct. 16, 1981)

Since 1972, subsequent court decisions have expanded the Weingarten
Decision.

Part II: The Rules of Representation

WEINGARTEN RULES

In accordance with the Supreme Court’s Weingarten decision, when an
investigatory interview occurs, the following rules apply:

RULE 1: The employee must make a clear request for union representation
before or during the interview. The employee cannot be punished for
making this request.

RULE 2: After the employee makes the request, the employer must choose
from among three options. The Employer must either:

Grant the request and delay questioning until the union representative
arrives and has a chance to consult privately with the employee; or

Deny the request and end the interview immediately; or

Give the employee a choice of (1) having the interview without
representation or (2) ending the interview.

RULE 3: If the employer denies the request for union representation, and
continues to ask questions, it commits an unfair labor practice and the
employee has a right to refuse to answer. The employer may not
discipline the employee for such a refusal.

Part III: Investigatory Interviews

WHAT IS AN INVESTIGATORY INTERVIEW?

Employees have Weingarten rights only during investigatory interviews.
An investigatory interview occurs when a supervisor questions an
employee to obtain information that could be used as a basis for
discipline or asks an employee to defend his or her conduct. If an
employee has a reasonable belief that discipline or other adverse
consequences may result from what he or she says, the employee has a
right to request union representation.

Shop-floor conversations: Not every administrator-initiated discussion
is an investigatory interview. For example, a supervisor may talk to an
employee about the proper way to do a job. Even if the boss asks
questions, this is not an investigatory interview because the
possibility of discipline is remote. The same is true of routine
conversations to clarify work assignments or explain safety rules.

Nevertheless, even an ordinary shop-floor discussion can change its
character if the supervisor is dissatisfied with the employee’s answers.
If this happens, the employee can insist on the presence of a union
representative before the conversation goes any further.

Disciplinary announcements: When a supervisor calls an employee to the
office to announce a warning or other discipline, is this an
investigatory interview affording the employee a right to union
representation? The NLRB says no, because the employer is merely
announcing a previously arrived-at decision and is not questioning the
worker. Such a meeting, however, can be transformed into an
investigatory interview if the supervisor begins to ask questions to
support the decision.

Note: An employer that has followed a past practice of allowing
association representatives to be present when supervisors announce
discipline, must maintain the practice during the contract term.
Refusing to allow an association representative to attend would
constitute an unlawful unilateral change.

Part IV: Conclusion

The right to representation is available to virtually every civilian
employee in the United States. The Weingarten Decision helps clarify the
correct procedures that should be followed during disciplinary meetings.
As an employee, a supervisor or as an association representative, it is
your responsibility to be aware of your rights and responsibilities and
to act accordingly.

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