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EMPLOYEE'S RIGHT TO UNION
REPRESENTATION
The right of employees to have union representation at
investigatory interviews was announced by the U.S. Supreme Court
in a 1975 case (NLRB
vs. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689). These
rights have become known as the Weingarten rights.
Employees have Weingarten rights only during
investigatory interviews. An investigatory interview occurs when
a supervisor questions an employee to obtain information which
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 the right to request union representation.
Management is not required to inform the employee of his/her
Weingarten rights; it is the employees responsibility to
know and request.
When the employee makes the request for a union
representative to be present management has three options:
(I) it can stop questioning until the representative arrives.
(2) it can call off the interview or,
(3) it can tell the employee that it will call off the interview
unless the employee voluntarily gives up his/her rights to a
union representative (an option the emplovee should always
refuse.)
Employers will often assert that the only role of a union
representative in an investigatory interview is to observe the
discussion. The Supreme Court, however, clearly acknowledges a
representative's right to assist and counsel workers during the
interview.
The Supreme Court has also ruled that during an investigatory
interview management must inform the union representative of the
subject of the interrogation. The representative must also be
allowed to speak privately with the employee before the
interview. During the questioning, the representative can
interrupt to clarify a question or to object to confusing or
intimidating tactics.
While the interview is in progress the representative can not
tell the employee what to say but he may advise them on how to
answer a question. At the end of the interview the union
representative can add information to support the employee's
case.
On June 15, 2004, The National Labor Relations Board
ruled by a 3-2 vote that employees who work in a nonunionized
workplace are not entitled under Section 7 of the National Labor
Relations Act to have a coworker accompany them to an interview
with their employer, even if the affected employee reasonably
believes that the interview might result in discipline.
This decision effectively reversed the July 2000 decision of
the Clinton Board that extended Weingarten Rights to nonunion
employees.
Q & A WEINGARTEN RIGHTS
Q: When do I have "Weingarten" rights to have a fellow
"associate" present
when speaking with a manager?
A: Anytime you think the manager may question you about
something that you
feel you might be disciplined for. EXAMPLE: An assistant manager
asks to talk
about an accident you were involved in the week before. You
think the manager
is trying to find out who was responsible. YOU HAVE WEINGARTEN
RIGHTS
TO BRING IN AN "ASSOCIATE" YOU TRUST. EXAMPLE: An assistant
manager asks to talk to you but doesn't say about what. Your
department
manager warned you that he told the store manager about a
customer who
complained about you. YOU HAVE WEINGARTEN RIGHTS TO BRING IN AN
"ASSOCIATE" YOU TRUST. EXAMPLE: An assistant manager wants to
talk to
you. You've heard that the manager is talking to "associates"
who were in an
argument that got too loud. YOU HAVE WEINGARTEN RIGHTS TO BRING
IN
AN "ASSOCIATE" YOU TRUST.
Q: What kind of "communications" does Weingarten apply to?
A: All kinds: in person, over the telephone, even e-mail.
EXAMPLE: A manager
telephones you from outside of the store and you think the
manager may want to
talk about something that happened at work that you could be
disciplined for.
YOU HAVE WEINGARTEN RIGHTS. You should tell the manager that
you'd
rather talk in the presence of another "associate" or with
another "associate" on
the telephone. EXAMPLE: A manager asks you to write a report
about missing
merchandise. YOU HAVE WEINGARTEN RIGHTS. EXAMPLE: A manager
approaches you while you're working on the sales floor and
starts to ask you
questions about your tardiness. YOU HAVE WEINGARTEN RIGHTS.
EXAMPLE: A manager approaches you in the break room or in front
of the store
while you're on break and starts to ask you questions about the
shelves in your
department that the manager has warned you about before. YOU
HAVE WEINGARTEN RIGHTS.
Q: Does the communication have to occur at work?
A: No. EXAMPLE: Your manager telephones you at home about your
absences.
YOU HAVE WEINGARTEN RIGHTS. You can tell your manager that you'd
rather
speak at work in the presence of another "associate". EXAMPLE:
Your manager
attends the same Church you do and after a service, starts to
talk to you about
some shortages in your cash register. YOU HAVE WEINGARTEN
RIGHTS.
EXAMPLE: A manager approaches you in the parking lot as you
leave work or at
the nearby McDonald's and starts to ask you questions about your
bad
"attitude." YOU HAVE WEINGARTEN RIGHTS.
Q: When should you "invoke" your Weingarten rights?
A: As soon as you realize that the manager may be asking you
questions about
something you could be disciplined for. EXAMPLE: A manager tells
you that he
wants to talk tomorrow about a spill the manager says you should
have cleaned
up. You can tell the manager at that time or just as the meeting
starts that you
are invoking your Weingarten rights and that you want an
"associate" you choose
and you trust to attend. EXAMPLE: You try to invoke your
Weingarten rights and
the manager "guarantees" that you will not be asked any
questions. Then, halfway
through the meeting, the manager begins to ask you what
happened. At the
point during the meeting that the manager begins to ask
questions, you should
invoke your Weingarten rights and refuse to answer any questions
until an
"associate" you trust and you chose is present.
Q: Who can you chose to witness the communication?
A: Any co-worker you trust who is working. EXAMPLE: If a manager
wants to
question you and you pick an "associate" who is at work but
busy, the manager
can either choose to interrupt that "associate's" work or
postpone the meeting.
The manager may not choose which "associate" will sit in or
force you to pick an
"associate" you do not trust.
Q: What can my Weingarten witness do?
A: First, the witness will hear everything everyone says and may
take notes.
Second, the witness can make sure that all of the manager's
questions are clear
and that you have a chance to answer all questions in your own
words. They
can ask the manager to rephrase confusing questions or questions
you don't
understand. Third, they can make sure that the manager does not
abuse or
harass you. EXAMPLE: A manager tries to put words in your mouth
by asking,
"so you admit eating the potato chips before paying for them,"
when you already
denied this. Your Weingarten witness can jump into the
discussion and correct
the manager. EXAMPLE: A decent manager is truly trying to find
out the facts
but asks a convoluted question. Your Weingarten witness can ask
the manager
to rephrase the question so it is clear. EXAMPLE: A manager
asks, "so you
admit being at work when the money was missing, that the money
came out of
your cash register, that the missing money was your
responsibility, and that you
're the 'associate' who should be disciplined for it? Yes or
no?" Your Weingarten
witness can insist that the manager break up these four
questions so you can
answer "yes" to the first two but "no" to the last two. EXAMPLE:
A manager tries
to mislead or trick you into admitting something untrue. Your
Weingarten witness
can point out what the manager is doing and insist that the
manager question
you fairly. EXAMPLE: A manager gets angry, starts shouting and
doesn't let you
say anything. Your Weingarten witness can insist that the
manager let you
answer in your own words. EXAMPLE: A manager tries to ask you a
trick
question, like "have you stopped beating your wife?" Your
Weingarten witness
can point out that the manager's question assumes that you
engaged in
wrongdoing, and insist that the manager separately ask you
whether you ever
engaged in the wrongdoing before asking you whether you continue
to do so.
Q: What other rights does Weingarten give me?
A: You can insist that the manager tell you what the interview
is about and what
kind of discipline might result. If you feel the need for a
break or you want to talk
things over with your Weingarten witness, you can take a private
break. You also
have the right to present your side and make your own defense.
Q: How can a manager respond to me invoking my Weingarten
rights?
A: The manager can grant your request and continue with the
interview. Or the
manager can terminate the communication.
Q: Can the company retaliate against me or the” associate" I
choose to witness
the communication?
A: No. If the company retaliates, discriminates or treats you or
your witness any
differently, contact the UFCW as soon as possible. UFCW
attorneys are
available to file Unfair Labor Practice Charges with the
National Labor Relations
Board on your behalf and on behalf of your Weingarten witness at
no cost.
Q: What should I do if the company denies my Weingarten rights?
A: Tell the manager that you do not want to answer any questions
until your
Weingarten witness is present. If your manager refuses and
insists that you
answer the questions anyway, inform the manager that you will
answer the
questions but only under protest. Tell the manager that you will
file Unfair Labor
Practice Charges against the manager
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