One of the most important jobs of a union representative is to help workers during investigatory interviews over discipline for an alleged infraction. An able rep can help a worker avoid self-incrimination. The rep may also dissuade an employer from imposing a penalty.
DUE PROCESS
Union contracts uniformly require employers to have just cause before issuing discipline. Due process is an established component of the just-cause standard. With few exceptions, it requires an employer to hear from the employee before making a decision on a disciplinary matter. An employer must conduct an interview even if an incident was witnessed or recorded. If an employer issues a severe penalty without an interview, a labor arbitrator may reduce the penalty or throw it out altogether.
UNION MUST BE ALLOWED TO ASSIST
In NLRB v. J. Weingarten, Inc. (1975), the U.S. Supreme Court declared that the National Labor Relations Act (NLRA) protects employees who request union assistance during investigatory interviews. Weingarten is binding on private-sector employers covered by the NLRA. Unions can file unfair labor practice charges at the NLRB to enforce the law’s requirements.
Whether state and local government employees enjoy Weingarten protections depends on the language of the public-sector bargaining law in their state (if any). If state law tracks the NLRA, as in California and Massachusetts, Weingarten rights apply.
WEINGARTEN RULES
§ A worker called in for the interview can request union representation at the start of an investigatory interview or any time during its course. The worker may select any readily available representative, including a steward, chief steward, officer, or full-time union staffer. Once a request is on the table, the employer or its agent must refrain from asking questions until the representative is summoned and arrives.
§ If the employer denies or ignores a Weingarten request, the worker can refuse to answer questions without fear of penalty.
§ Upon arrival, the union representative can ask the investigator to state the nature of the matter being investigated. The investigator must comply—although evidence against the employee does not have to be revealed.
§ The representative must be allowed to hold a private caucus (meeting) with the employee before questioning begins.
§ During the caucus, the representative can encourage the worker to remain calm, avoid insubordination, and refrain from bringing harm on fellow workers.
§ When the meeting resumes, the representative can give advice on particular questions and can object if a question is confusing or intimidating.
§ When the questioning is completed, the representative must be allowed to present a verbal defense, for example, explaining mitigating or extenuating circumstances or citing employees who received lesser penalties for similar misconduct.
PRACTICAL TIPS
Unions should educate employees about their Weingarten rights and the need to invoke them. Explain that representation can save a worker’s job even if the worker is good at talking his or her way out of problems. Many unions distribute cards with requests for representation and instruct workers to read them aloud to the investigator. Warn the worker about trick questions such as: “You are aware, are you not, that the company has a rule against gambling on the premises?” and “You are aware, are you not, that the penalties for gambling include discharge?”
Answering “yes” may preclude the union from arguing that a rule was insufficiently publicized or that, because of lax enforcement, the worker had cause to believe that the rule was not in force.
Advise the worker to consider the following answer: “I am not sure of exactly what that rule covers. Moreover, based on past practice, I am not sure that the rule applies in my department.”
When appropriate, explain that some “cardinal” offenses—for example, selling drugs, theft, fabricating records, and drinking on the job—are so serious that if a worker admits guilt, even in part, the employer is likely to issue a discharge even if the worker has an exemplary record.
Never tell a worker to straight-out lie. For one thing, this could lead to your own dismissal. Instead, say: “I am not telling you what to say. But you need to know that if you admit to any part of these charges, the company will almost certainly fire you.”
In these circumstances, a possible recourse for the worker is to assert his or her Fifth Amendment right to remain silent. While legally this standard may not apply in the workplace, not every employer understands this.
In any case, it may be preferable to risk a penalty for non-cooperation rather than taking a chance on either a weak denial or an admission of guilt to a cardinal offense.
In some situations—for example, where the worker is charged with a non-cardinal offense about which the evidence is irrefutable—the best course may be for the worker to admit wrongdoing, pledge not to repeat the conduct, and express a willingness to enter a counseling or retraining program. This approach is most effective when proffered before the employer announces a decision on the matter.
QUESTIONS AND ANSWERS
Q. A worker was called for an interview and asked if she saw another employee committing an unsafe act. Did she have a right to demand union representation?
A. Yes, if she had a reasonable fear that her failure to timely report the incident could lead to her own discipline. For example, the company may have a published rule requiring workers to promptly notify supervisors when they observe safety infractions.
Q. Can a worker who is instructed to undergo a drug screen insist on bringing a union steward to the test?
A. Yes. In a 2015 decision (Manhattan Beer Distributors), the NLRB said that an employer must allow a representative to attend a drug test to insure that the screener follows proper protocols.
Q. If a worker is called at home and questioned about an on-the-job accident, can he decline to answer until he has an opportunity to consult with his steward?
A. Yes. Weingarten rights apply to phone calls from management.
Robert Schwartz, a retired union attorney, is the author of The Legal Rights of Union Stewards, which includes a chapter on Weingarten rights. He is also the author of Just Cause: A Union Guide to Winning Discipline Cases. Both books are available at labornotes.org/store.
A version of this article appeared in Labor Notes # 485.