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December 1997
Vol. 1 No. 3 Page 3

WEINGARTEN ~ It's Your Rights

by Gene Buccheri

These are the rights of the employee during an investigatory interview by the employer. The name is taken from a 1975 case in which the Supreme Court endorsed a National Labor Relations Board decision that provided union employees with the right to request the presence of a union representative at any investigatory interview which the employee reasonably believed might result in discipline. (NLRB v. J. Weingarten Inc.,420 U.S. 251)

Under current law and NLRB decisions both union and nonunion employees have the right to request that a witness or representative be present at any investigatory interview which the employee reasonably believes might result in disciplinary action. An employer who violates such a request and proceeds with the interview is in violation of sections 7 and 8(a) (1) of the National Labor Relations Act (29 U.S.C. 151 et seq).

The high court considered an employee's request for representation as furthering national labor policy which seeks to eliminate the inequality of bargaining power between employees and employers. The court stated that a lone employee "may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors."(420 U.S. 263)

Other important points about Weingarten:

1. The Supreme Court limited the right to a witness or representative as arising only in the instance in which the employee requests representation.

2. The employer may refuse an employee's request for a witness and proceed with the investigation without conducting the employee interview.

3. An employee may waive the right to request a representative and participate in the interview alone. (420 U.S. 258-59)

4. The NLRB has expanded the right to the representation by acknowledging the employee's need to be informed in advance of the subject matter of the interview. (262 N.L.R.B. 1048)

5. The NLRB has recognized the right to a pre-interview consultation between the employee and a representative to familiarize the representative with the facts of the employee's case.

6. If a particular representative is requested who is unavailable through no fault of the employer, the employer is not obligated to postpone the interview. (253 N.L.R.B. 1143 and 264 N.L.R.B. 541) Next Column

7. The Union representative's role during the investigation interview may not be limited to mere observation: however, the employer may insist that the questions addressed to the employee not be answered by the Union representative. (667 F.2d 47C and 659 F. 2d 124)

8. Management has no obligation to inform the employee of the right to request the presents of a witness or a Union representative.(269 N.L.R.B. 156)

9. The right to representation does not apply to a meeting called exclusively to notify the employee of previously determined discipline.(246 N.L.R.B. 995)

10. If the employee asks for a representative the employer does not have to agree. The employer may continue the investigation without interviewing the employee. The employee may waive the right to representation and proceed if he wishes ; however, the employee may refuse to participate in the interview when he has requested representation and the employer has refused it.(United States Postal Service, 241 N.L.R.B. 141)

11. The employer may not discipline the employee for exercising any of these rights. (Good Hope Refineries v. N.L.R.B. 620 F. 2d 57)

Every Union member should be made aware of their rights under Weingarten. They should insist they have representation at all investigatory interviews. If denied they should refuse to participate in the interview.

When processing disciplinary grievances, the union steward should determine if an investigatory interview took place with the employee. If one did take place and the employee was denied access to representation or was threatened with discipline if he or she did not proceed with the interview the union steward should certainly raise that issue in the grievance.

While most "genuine " counseling will not give rise to Weingarten rights, some may. Obviously those which are not really counseling but rather investigatory interviews will. Also, some counseling may start out as non disciplinary discussions and become those type interviews which are subject to Weingarten.

Geno Buccheri has been with the Postal Service for 27 years. He is a member and Chief Steward for NALC Branch No. 628, Spartanburg, SC.

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