What are “Weingarten Rights”?
Weingarten Rights is the right of every union worker to have a union representative present during an investigation conducted by the Company in which there is reasonable belief that the investigation might lead to discipline. It is a vital component of Just Cause and every worker should be familiar with how it works and how to invoke their rights.
What is an investigatory interview?
An investigatory interview occurs when management questions an employee to obtain information about a situation that might lead to discipline. It need not occur in an office; spontaneous questioning or “short conversations” on the shop floor can also qualify. Investigatory interviews usually relate to subjects such as absenteeism, accidents, damage to company property, drinking, drugs, falsification of records, fighting, insubordination, poor attitude, sabotage, theft, violation of safety rules or work performance.
However, please be aware that meetings such as, to deliver a disciplinary document, clarify a work assignment, or explanation safety rules are not considered investigatory. In these types of meetings, workers are not given the right to representation.
How does it work?
First, the employee must make a clear request for union representation before or during the interview. A worker cannot be legally punished for making this request. Remember, it is your right, so exercise it!
Once the employee has requested union representation, the employer has three options: 1) Grant the request and delay questions until the steward arrives, 2) Deny the request and end the investigation, 3) Give the worker a choice of having the interview without representation or ending it. If the employer denies the request for a steward and continues to ask questions the employee reasonably believes could lead to discipline, the employer is committing an unfair labor practice and you have the right to refuse to answer. The employer may not legally discipline the employee for such a refusal. They may however illegally discipline an employee in which case a grievance will be filed.
What happens when the steward arrives?
When the steward shows up at the meeting, he/she has the right to know the nature of the meeting. The steward has the right to take the employee aside and speak privately. In fact, you and the steward can have up to 15 minutes on the clock to prepare for the meeting prior to actually having the meeting with management. In this time, the steward can help you understand your options and make sure you are prepared to inform the Company as to the pertinent facts of their investigation.
What is the steward's role in an investigatory meeting?
Once the meeting has started, the primary role the steward will play is that of notetaker. This ensures that an accurate record of the meeting exists. In addition to taking notes, the steward can speak during the meeting, ask for clarification, and give the member advice. However, the steward may not obstruct the interview. When the questioning ends, the steward can provide additional information to the supervisor. It must be emphasized that if the Company has complied with Weingarten rules, stewards cannot tell workers not to answer questions, or to give false answers. Both the steward and the worker are required to cooperate with the Company's investigation.
What is management’s penalty for failing to allow union representation?
The union can file an unfair labor practice charge. The usual penalty is a federally mandated posting on on the Company's bulletin board that acknowledges management violated federal labor law.
Shouldn’t management automatically call a steward in if they are going to conduct an investigatory interview?
Sure! But they’re not legally required to do so. Employers have no obligation to inform workers of their right to request union representation. This is the union’s job. Wallet size cards with the “Weingarten Speech” are printed in every edition of the ILWU Local 5 newsletter. The card reads: “If this discussion could in any way lead to my being disciplined or terminated, I respectfully request that my union steward, representative or officer be present at this meeting. Without union representation, I choose not to participate in this discussion.”
So it is important that you know your rights and know how to invoke them!
Just Cause & Progressive Discipline
What is Just Cause?
While the standard of “Just Cause” does not have a specific definition, most arbitrators follow the guidelines set forth in a 1966 case referred to as Enterprise Wire Company. These guidelines are knows as the “Seven Tests.”
In determining whether a disciplinary action or termination adheres to Just Cause, most arbitrators ask the following seven questions. If the answer to any of these questions is “no,” the discipline or termination may have been issued withouth Just Cause.
What are the “Seven Tests?”
Reasonable Rule or Order
Was the employer’s rule or managerial order reasonably related to a) the orderly, efficient and safe operation of the employer’s business, and b) the performance that the employer might properly expect of the employee? That means that the employer’s rule or order that the employee is alleged to have violated must not be arbitrary, capricious or discriminatory.
Note: If a worker believes a rule or order is unreasonable, the best advice is to follow the rule or order and grieve the issue later. The exception to this is if there is serious concern of injury or death due to following of the rule.
Did the employer give the employee forewarning or foreknowledge of the possible disciplinary consequences of his/her conduct? Was the employee told that if he/she did not obey, there would be discipline? Was the employer clear and unambiguous? Was the penalty stated?
Note: There are some activities that require no warning, as they are so serious, all employees should intrinsically know better. An example of this is theft or being under the influence of illegal drugs.
Did the employer, before administering discipline, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management? Remember that the employer acts as prosecutor, judge and jury in discipline cases, so it has the responsibility to getting all the facts that might have an influence on the final decision.
Note: There are some circumstances where an employee may be suspended pending the investigation. After the investigation is completed, it is expected the Employer will base its decision on the facts and, if innocent, the employee will receive back wages for time lost.
Was the employer’s investigation fair and objective? A fair investigation should be timely and complete, respecting the employee’s right to union representation and due process. The employer must evaluate the facts fairly and objectively, without a rush to judgment.
At the investigation, did the ‘judge’ obtain substantial evidence that the employee was guilty as charged? The employer must provide solid evidence to prove the employee “guilty.”
Note: The standard is not “beyond a reasonable doubt.” Rather, evidence must be “weighty and substantial.”
Has the employer applied its rules, orders and penalties even-handedly and without discrimination to all employees? If the employees committing the same “crime” are treated differently, there may be discrimination, or disparate treatment, which violates this test.
Was the degree of discipline administered by the employer in a particular case reasonably related to a) the seriousness of the employee’s proven offense, and b) the record of the employee in his/her service with the employer? In other words, does the punishment fit the crime?
By subjecting the employer’s case for disciplinary action to these tests, a steward can provide a strong defense for an aggrieved employee and often force management to review its actions. The Seven Tests of Just Cause serve as a tool to hold management accountable for its actions.
What if the Company doesn't follow Just Cause or Progressive Discipline?
If the Union or an individual member disagrees with the Company's application of Just Cause or Progressive Discipline, the Grievance Procedure allows for a formal challenge to be filed. Through that procedure, the Company is required to defend their decision and prove the merits of their position.