Shop Stewards Have Weingarten Rights, Too
By Christopher Hammer
Union members have the right to the presence of a union representative at an investigatory interview that the employee reasonably believes may result in disciplie: this is the Weingarten right, named after the U.S. Supreme Court case of the same name. The legitimate role of the union representative includes providing assistance and counsel to employees who may lack the ability to express themselves or who may be too afraid or inarticulate to raise extenuating circumstances. Importantly, representatives are not required to merely be a "silent witness." They have the right to:
- Be informed by the supervisor of the subject matter of the interview;
- Take the employee aside for a private conference before questioning begins;
- Speak during the interview;
- Request that the supervisor clarify a question so that what is being asked is understdood;
- Give the employee advice on how to answer a question; and
- Provide additional information to the supervisor at the end of the questioning.
The law also, however, recognizes the employer's right to investigate an employee's alleged misconduct without interference from union officials, and to insist on hearing the employee's own account of the matter under investigation. How far can a union representative go in representing a member in a Weingarten interviewwithout losing the protection of the law?
The NLRB addressed this question in a decision issued in March. In Howard Industries, Inc., 362 NLRB No. 35, the shop steward, during the employer's investigative interview, tapped on his notebook to draw the attention of the employee and then held up the notebook for the employee to read from verbatim. Prior to the investigatory meeting, the steward had met with the employee and took notes of the extenuating circumstances the employee described. When the steward refused to close his notebook at the employer's request, the employer threatened to suspend him.
The Board found the steward’s conduct remained protected because the use of the notebook provided the employee “clarification and counsel” by reminding him of his defense. The employee was entitled to be reminded of his defense at that point in the interview when it was most useful to both employee and employer. The Board concluded that the union representative’s conduct did not interfere with the integrity of the employer’s investigation, and therefore, the employer’s threat to suspend him was unlawful.
Notwithstanding this decision, shop stewards are reminded that assistance to a member in a Weingarten interview that interferes with the employer’s legitimate right to interview the employee will not be protected and will subject the steward to lawful discipline.
As of today, the Weingarten protections only apply in a unionized setting. But the NLRB in the past, before reversing itself, has extended these protections to non-unionized employees as well. It is possible the current Board, dominated by Obama appointees, will revisit this issue, and if so, perhaps all employees will once again have a right to representation in investigative meetings.
The Weingarten protections for union representatives during employer investigatory meetings are a dynamic area of labor law. Beeson, Tayer & Bodine is a California law firm that represents unions and their members, and routinely practices before the NLRB. The reader might find this related blog article intereting where we highlight the union representative's rights to insist on knowing the purpose of an investigatory meeting in advance,Weingarten Reprentatives Have Rights Too.
Source: Beeson, Tayer & Bodine, 4 May 2015