Center for Labor Education & Research
University of Hawaiʻi - West Oʻahu
91-1001 Farrington Highway, Kapolei, HI 96707
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EMPLOYEE'S RIGHT TO UNION REPRESENTATION
In 1976 when the Federal Service Labor-Management Relations Statute was enacted, the same protections were specifically incorporated into that collective baragaining law at §7114:
2(B) any examination of an employee in the unit by a representative of the agency in connection with an investigation if--
Though these two federal collective bargaining laws do not directly apply to public sector employees employed by state governments, many states whose language in their state collectove bargaining statutes that contain comparable language to Secion 7 of the National Labor Relations Act.
Enforcement of Weingarten Rights as described above may be sought by filing "Unfair Labor Practice" charges with the applicable labor board (i.e. NLRB, FLRA, etc.). But it is not uncommon that allegations of the denial of Weingarten Rights will be raised in disciplinary grievances and arbitrations to the extent that it may be considered a past practice to incorporate the general principles of Weingarten into the "Just Cause" standard of a collective bargaining agreement.
(from Bureau of National Affairs, Union Labor Report, Sec. 34.3, No. 2572, 7-17-2015)
The right to union representation comes into play at the earliest stages of the disciplinary process, when employees first face employer questioning about suspected wrongdoing as part of an "investigatory interview."
... Employees who assert their union representation rights are engaged in protected activity under the National Labor Relations Act. Thus, an employer would violate the NLRA by punishing an employee for refusing to cooperate in an investigatory interview where a valid request for union representation has been denied.
Federal labor law protects employees when they seek the assistance of a union representative during an investigatory interview that they reasonably believe might result in disciplinary action, according to the U.S. Supreme Court's ruling in NLRB v. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689 and its companion ruling in ILGWU v. Quality Mfg. Co. (420 U.S. 276, 88 LRRM 2698 (1976)).
The Supreme Court said such activity "clearly falls within the literal wording" of Section 7 of the NLRA (29 U.S.C § 157), which guarantees employees the right to engage in concerted activities for mutual aid or protection.
According to the court, the assistance of a union representative can be especially helpful where a single employee, faced with an employer investigation, "may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors." The court added that union representatives perform a service on behalf of the entire bargaining unit when they exercise vigilance to insure that employers do not engage in a practice of unjustly imposing punishment
Nonunion employees -- The NLRB has decided not employees to extend Weingarten The NLRB to nonunion employees. In so ruling, the board reversed an earlier decision in which it held that employers were re quired to allow nonunion employees to have another employee present during an investigatory interview (IBM Corp., 341 N.L.R.B. 1288, 174 LRRM 1637 (2004), rev'g Epilepsy Found.,331 N.L.R.B. 676, 164 LRRM 1233 (2000)).
Triggering Weingarten Rights Two key factors trigger an employee's right to seek the assistance of a union representative:
In discussing the "countours" of Weingarten rights, the Supreme Court emphasized the importance of considering all the circumstances and relying on objective standards rather than the subjective reaction of the employee. The court pointed out, for example, that a right to union representation would not arise during run-of-the-mill conversations in which supervisors give employees instructions, training or corrections to work techniques.
Does Weingarten apply? -- Employees dont't immunize from discipline simply by invoking Weingarten. In fact, demanding union representation and refusing to cooperate with management in situations where Weingarten rights do not apply could amount to a dischargeable offense on its own.
For instance, employees cannot prematurely insist on union representation and defy a simple request to leave their work area for a discussion at another location, even if Weingarten rights would apply during the ensuing meeting (Roadway Express, 246 N.L.R.B. 1127, 103 LRRM 1050 (1979); see also Glomac Plastics, 234 N.L.R.B.1309, 97 LRRM 1441 (1978), enfd, 600 F.2d 3, 101 LRRM 2456 (2d Cir. 1979))
In addition, Weingarten does not require union representation at a meeting where an employee is being informed about discipline that was already decided upon (Jackson Hospital Corp. v. NLRB, 647 F.3d 1137, 190 LRRM 3230 (D.C. Cir. 2011); Brunswick Elec. Membership Corp.,308 N.L.R.B. 361, 142 LRRM 1151 (1992); Barmet of Ind., 284 N.L.R.B. 1024, 125 LRRM 1338 (1987); BatoRouge Water Works Co., 246 N.L.R.B. 995, 103 LRRM 1056 (1979); NLRB v.Certified Grocers of Cal., 587 F.2d 449, 100 LRRM 3029 (9th Cir. 1978)).
On the other hand, a meeting called for the imposition of discipline can turn into a session where Weingarten rights apply if the discussion shifts course and takes on the characteristics of an investigatory interview (General Die Casters Inc., 358 N.L.R.B. No.85,193 LRRM 1153 (2012)).
Adequacy of request-- A threshold question that arises in some cases is whether employees actually requested union representation. Employers may avoid culpability for failing to grant representation in the absence of an adequate request, since there can be no denial of Weingarten rights if they haven't been invoked in the first place.
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 .
Employer violated Sec. 8(a)(1) when its supervisor refused to allow union representative attending predisciplinary 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 .
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 predisciplinary 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 .
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 .