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From NLRA Basics presented at 2006
ABA Annual Meeting (Honolulu, August 5-8, 2006)
Weingarten Questions:
Right to Union Representation & Role
of Union Representation In Disciplinary Actions
In NLRB v. Weingarten, Inc., the U.S.
Supreme Court held that an employee has the
right under the National Labor Relations Act
(NLRA) to union representation at an
investigatory interview which the employee
reasonably believes may result in disciplinary
action. NLRB v. J. Weingarten, Inc., 420
U.S. 251 (1975).
1. When
is Protection Afforded?
Protection under
Weingarten is afforded when an employee
reasonably believes that disciplinary action may
be the result of his/her meeting with the
employer's representative in an investigatory
interview and where the employee requests
representation.
a. What
is a "reasonable" belief is measured by
objective standards, not the subjective
motivations of the employee, based upon a
reasonable evaluation of all the surrounding
circumstances.
b. An
employee can participate in an interview without
a representative if he/she foregoes his/her
right to request one.
c. Ordinarily,
once a valid request for union representation is
made, the burden is on the employer to either
grant the request or offer the employee the
choice between continuing the interview
unaccompanied by a union representative or
having no interview at all.
d. An
employer has no obligation to continue with an
investigative interview once union
representation is requested. It does not have to
justify its refusal and can continue its
investigation without questioning the employee
and the employee then foregoes any benefits that
may be derived from participating in an
interview.
2. What
Role Does the Union Representative Play?
a. The
representative's role is to assist the employee
and the representative may do so "by attempting
to clarify the facts or suggest other employees
who may have knowledge of them." Weingarten,
420 U.S. 251 (1975).
b. A
representative oversteps his/her bounds in
instructing an employee not to answer a question
or questions during an interview. An employer
may "eject" a representative who engages in such
behavior because "it is within an employer's
legitimate prerogative to investigate employee
misconduct in its own facilities without
interference from union officials."
Weingarten, 420 U.S. 251 (1975).
Cases:
Employer lawfully denied employee's request
for co-worker representative to accompany him
during investigative interview, where employees,
who were not union-represented, were not
entitled to co-worker representative. —Publix
Super Markets Inc. (347 NLRB No. 124) 180
LRRM 1480 [2006].
Employer violated Sec. 8(a)(1) when its
supervisor refused to allow union representative
attending pre-disciplinary interview to speak on
behalf of employee facing discipline, where
supervisor's statements at beginning of meeting
limited role of union representative to that of
observer, and statements were not ambiguous. —U.S.
Postal Service (347 NLRB No. 89) 180 LRRM
1495 [2006].
Employer unlawfully denied union
representation to two employees at grievance
meetings by permitting union representative to
attend but prohibiting him from actively
assisting employees, where meetings were
pre-disciplinary investigatory meetings and did
not involve imposition of predetermined
discipline, and thus principles of NLRB v.
Weingarten, apply to these meetings. —Washoe
Medical Center Inc.. (348 NLRB No. 22) 180
LRRM 1502 [2006].
Employer unlawfully refused to permit
employee who was union steward to speak with
union representative before investigatory
interview and when it failed to notify him or
union representative of disciplinary charges
before such interview, where, among other
things, collective-bargaining agreement required
employer to provide notice of disciplinary
charges prior to investigatory interview. —U.S.
Postal Service (345 NLRB No. 26) 178 LRRM
1213 [2005].
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