History of Weingarten Rights
Over thirty years ago, a counter clerk who worked for a J. Weingarten store in Houston, Texas, was questioned by her employer for alleged theft. Although she was cleared in the investigation, she had been denied, after several requests, the presence of her Shop Steward during the questioning. The Union representing her filed an unfair labor practice after the incident, and the Supreme Court ruled in the Union's favor.
Under the 1975 U.S. Supreme Court ruling NLRB vs. Weingarten: "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. This right applies only in investigatory interviews, not in regular or routine discussions about work performance or job assignments."
The guaranteed rights from this ruling are known as Weingarten Rights.
Know Your Member Rights
Under Weingarten employers have no obligation to inform the employees of their rights to union representation. The employee must ask for union representation.
Administrators have every right to communicate with their teachers, but when it comes to questioning which could result in discipline, the teacher has rights as well. Because an innocent member might be the focus of an investigation, the request of a union representative is certainly not an admission of guilt. Even an innocent member would be well advised to request union representation.
If you are called to a meeting or at any time during a meeting with an administrator at which you are asked for information, or pressed to discuss an event or incident which you believe could result in discipline, it is your right to request union representation be present. You must clearly make your request to exercise this right. You can make the following statement:
"If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I respectfully request that my union representative be present at this meeting. Until my union representative arrives, I choose not to participate in this discussion."
Anything close to this statement will do. The member cannot be punished for making this request.
After you have made the request, the administrator must either:
Grant the request and delay questioning until the union representative arrives and has a chance to consult privately with you,
Deny the request and end the interview immediately, or
Give the member the choice of a) having the interview without representation or b) ending the interview.
The administrator cannot choose your union representative for you. However, the administrator is not required to postpone the interview because a particular representative is unavailable. If the administrator denies the request for union representation and continues to ask questions, he commits an unfair labor practice, a violation of federal law, and the member has a right to refuse to answer. Immediately inform your union representative after such a meeting.
A member can only refuse to go to a meeting if an administrator makes clear in advance that union representation will be denied at the interview. Weingarten rights do not arise until an investigatory interview actually begins. The member must make a request for representation to the person conducting the interview.
Union Representatives Rights/Duties
Employers sometimes assert that the only function of a union representative at an investigatory interview is to observe the discussion; in other words, to be a silent witness. This is incorrect.
The union representative has the right to counsel the member during the interview and to assist the member to present the facts. Legal cases have established the following rights and obligations of the union representative.
If you are called upon by a member to be present at an investigatory interview here is what you can and should do:
The administrator must inform the union representative of the subject matter of the interview, i.e. the type of action/misconduct for which discipline is being considered.
The union representative must be allowed a private pre-interview conference before the questioning begins.
The union representative must be allowed to speak during the interview, but, has no right to bargain over the purpose of the interview or to obstruct the interview.
The union representative can serve as a witness to prevent an administrator from giving a false account of the conversation.
The union representative can object to intimidation tactics or confusing questions.
The union representative can warn a member against losing his or her temper.
The union representative can object to a confusing question and can request that the question be clarified so that the member understands what is being asked.
The union representative can advise the member not to answer questions that are abusive, misleading, badgering, or harassing.
When the questioning ends, the union representative can provide additional information to the administrator after the questioning ends.
The union representative should take detailed notes during the meeting and urge the member to make a written account of the incident in question.
The union representative should inform the Association president as soon as possible.
If you see a member is in a meeting or conversation with an administrator where they are in danger of being disciplined, you can take the initiative. You don’t have to wait for the member to ask — you should make sure you are part of that meeting. If the interview is investigatory, the member must be allowed to indicate whether he or she desires a union representative presence.
When you arrive, check to see what the issue is about. Then meet privately with the member for a couple of minutes. Talk with them about questions that may be asked. Advise them to be careful — that anything they say could be used against them. Warn them not to volunteer any extra information, to keep answers short, and to stay calm. Remind them they’re not alone: the BEA is there to support them!