DO NOT BE TAKEN ADVANTAGE OF BY YOUR EMPLOYER: KNOW YOUR WEINGARTEN RIGHTS

It is nearing the 30^th anniversary of the U.S. Supreme Courts decision in NLRB v. Weingarten.  As Union members we should all understand the nature of that case and its impact on our rights as Teamsters.  However, far too often I hear that some of our members are “unclear” as to the significance of the Weingarten decision.  In a nutshell, the Supreme Court held in Weingarten that a unionized employee has the right to union representation at an investigatory interview and that this principle was a permissible interpretation of the National Labor Relations Act.  But since 1975, courts and the NLRB have further defined the parameters of Weingarten Rights.  My purpose here is to outline the nature of the Weingarten decision and briefly discuss the basic rights established therein.

NLRB v. Weingarten

The Weingarten case is very simple in that an employee of the Weingarten Company was accused of stealing.  Specifically, a co-worker reported that sales employee Laura Collins put only $1.00 in the register for a $2.98 box of chicken. Collins told a Weingarten security employee that she used a larger box because the store had run out of smaller chicken boxes. The security employee told Collins that her explanation was verified and apologized for inconveniencing her. Collins then burst into tears and blurted out that the only thing she had ever gotten from the store without paying for it was her free lunch. She was not entitled to a free lunch. During the next interview, the employer denied her request that a shop steward attend the interview.  The NLRB held that Weingarten violated §8(a)(1) of the Act by denying Collins' request for representation.  The Supreme Court agreed with the NLRB definition of “Weingarten Rights” -that an employee, upon request, is entitled to have a union representative at an investigatory interview that the employee reasonably believes might result in discipline, i.e., a ”Weingarten” interview.
    
     The Supreme Court further established several limits of Weingarten Rights.  The most important limits are: First, the right arises only if the employee requests representation.  This means that an employee must reasonably place the employer on notice that he/she is desirous of a union representative.  However, the employee need not repeat the request if it was made to the person conducting the interview.  Second, the employee's right to request representation as a condition of participation is limited to interviews where the employee reasonably believes the investigation will result in disciplinary action.  This includes interviews where an employee does not answer questions but is simply asked to take a sobriety test or drug screening.  The standard for determining whether an employee has a “reasonable belief” is an objective one.  Simply stated, if you feel that based on your experience with the employer that you might be subject to discipline as a result of the interview, it is best to first consult with a union representative before the interview.  Keep in mind that if a union steward is not available, you may ask another union member to act as a representative.  However, you are not entitled to Weingarten rights during a run-of-the-mill shop-floor conversation.
    
     Once the request for union representation is made, the employer has three options.  First, the Employer can grant the request and immediately discontinue all questions until a union representative is located.  The second option would be to give the employee the option of continuing without a union representative or forgoing the interview altogether.  Lastly, the employer can deny the request and terminate the interview.  The second and third options are interesting in that the employer would have to base any disciplinary decision on evidence other than evidence obtained from the employee i.e. confession, etc.  In drug and alcohol screening cases, absent a confession, it might be very difficult to discipline an employee without an actual alcohol/drug test result.

     Keep in mind these fundamental principles of Weingarten Rights and exercise your right to request union representation if you ever find yourself in an investigatory interview which might result in discipline for you.

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WHAT EVERY EMPLOYEE SHOULD KNOW ABOUT FILING

UNFAIR LABOR PRACTICE CLAIMS.

      The National Labor Relations Act allows any worker who feels victimized by an unfair labor practice to file a complaint against their employer.  The process is relatively easy, though there are some key points of which workers must be aware.
First, and probably most important, is the time limitation. For a compliant to be valid, you must file it with the regional office of the National Labor Relations Board and serve it to your employer within six months of the date that the incident occurred.

     The first step in filing a complaint is to obtain a copy of NLRB Form 501, titled “Charge Against Employer.”  This form can be obtained at any of the regional offices or can be downloaded from the agency’s website, www.nlrb.gov.  The one-page form requires basic information about the employee, the company and the charge.  The Form 501 does not require an elaborate explanation of the charge.  A clear, simple description consisting of just a few sentences will suffice. The complete form can be mailed, faxed or hand-delivered to the NLRB’s regional office.

     Once the charge is filed with the NLRB and served to the employer the information-gathering phrase begins.  The NLRB will assign the case to a field examiner or a field attorney, who will contact the employee and take a sworn statement or affidavit detailing the alleged unfair labor practice.  After talking to witnesses provided by the filer, the examiner will then collect affidavits and witness statements from the employer. 

     At this point the NLRB examiner submits a report with all the information from each side to the regional director, who then determines which cases present an NLRA violation and which do not.  The cases deemed meritorious move forward to the settlement phase; cases without merit are dismissed.

     Once the regional director concludes that a violation has occurred, a settlement agreement is drafted and presented to the employer. The agreements generally call for the employer to admit that their actions violated NLRA regulations and to post compliance agreements at conspicuous workplace sites for a specified period of time.

     If the employer doesn’t agree to sign the settlement agreement, the case goes to trial.   All  NLRB cases are assigned to Administrative Law Judges (ALJs), who review arguments from each side and then hand down a decision.  If one of parties appeals, the case then goes before federal appeals court. 

     When the regional director determines that a violation has occurred the NLRB, in effect, becomes your legal representation.  An NLRB staff attorney will represent you throughout the appeals process, all the way to a federal circuit court, if necessary.

     In cases involving a worker at a union shop, the union will often file a complaint with the NLRB on behalf of the worker, as called for under the shop’s collective bargaining agreement.  Sometimes a union attorney will join with the NLRB attorney in representing the case during the appeals process.  But it is important to understand that the NLRB complaint process is structured so that outside legal representation is not necessary when moving a complaint forward.

     In most cases the NLRB attempts to resolve all matters within a few months of the Form 502 being filed by the employee.

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