Weingarten Rights

Allun

We're having more and more of our union employees hiring an outside attorney to be with them during a disciplinary meeting. My understanding is that under Weingarten an employee has a right to union representation. Can the employee choose to bring in an "outsider" (i.e., lawyer, relative, friend, etc.) and must the employer accept that the employee has this option?

gus

We only allow "union" representation for employees until they have processed thru the third step.

Gar

My understanding of Weingarten is that an employee in a collective bargaining unit has the right to have a representative with him/her in a meeting if the employee has reason to believe the meeting is for the purpose of or will lead to disciplinary action. Moreover, that representation can be in the form of a coworker who isn't a union representative. Having someone beyond the scope of the employment relationship or environment is news to me.

Theresa Gegen TX

The employee doesn't have any right to bring in an outsider.

Pamela

Teresa, how are you defining "outsider?" I'm sure Weingarten is not limited to being able to bring a co-worker.

Theresa Gegen TX

My understanding of Weingarten Rights (and it may not be perfect) is that the right allows an employee to have a union rep present (which is usually another employee, but could also be union employee). For non union shops, the right includes the right to bring in a co-employee.

It does not include the right to bring in anyone else (for example spouse, attorney, boyfriend).

However, an employee may have some other right to bring in someone from outside of the company (for example - if an americans with disabilities act accomodation needs to be discussed, the employer should probably allow the employee to use an advocate to help)

If anyone knows differently, please let me know. I am always willing to learn something new.

Thanks . . . Theresa

Gar

Theresa, Your understanding of Weingarten is similar to my understanding.

Paul

Theresa, this might help you. It comes from the July 21, 2000 Management Alert from Seyfarth Shaw (a legal firm newsletter):

"The full import of the Board majority's ruling in Epilepsy Foundation remains to be seen. However, for nonunion employers, some guidance is available with respect to a number of practical issues:
· Must I comply if the ruling is appealed? In Epilepsy Foundation, the NLRB applied the new right to nonunion Weingarten representation "retroactively." Thus, at least according to the NLRB, nonunion employees have a right to Weingarten representation at the present time, notwithstanding any possible appeal of the NLRB's recent ruling. Nonunion employers act at their peril if they disregard the new ruling.
· Must I give representation to nonunion employees if it is not requested? No. The Supreme Court in Weingarten stated "the right arises only in situations where the employee requests representation."
· In what types of meetings can employees request representation? As stated in Weingarten "the employee's right to request representation as a condition of participation in an interview is limited to situations where the employee reasonably believes the investigation will result in disciplinary action." This right does not exist, for example, concerning "run-of-the-mill shop-floor conversation" like the "giving of instructions or training or needed corrections of work techniques."
· If the employee requests representation, can I decide not to have an investigatory meeting? Yes, although this may create other potential problems (see the next point below). The Supreme Court in Weingarten approved the following approach:
Ø The employer may, if it wishes, advise the employee that it will not proceed with the interview unless the employee is willing to enter the interview unaccompanied by his representative. The employee may then refrain from participating in the interview, thereby protecting his right to representation, but at the same time relinquishing any benefit which might be derived from the interview. The employer would then be free to act on the basis of information obtained from other sources.
· Can non-NLRB problems arise from administering discipline without an investigatory meeting? Yes. Administering discipline without hearing the employee's side of the story, and without having the ability to extract from the employee a single explanation for his or her actions, may create problems if the individual initiates other types of employment litigation (e.g., wrongful discharge or discrimination claims). Jurors in particular would likely disfavor situations where an employer terminated a person's employment without hearing their version of events.
· Must I "bargain" with a nonunion employee's representative? No. In Weingarten, the Supreme Court stated:
Ø "the employer has no duty to bargain with any…representative who may be permitted to attend the investigatory interview…The representative is present to assist the employee, and may attempt to clarify the facts or suggest other employees who may have knowledge of them. The employer, however, is free to insist that he is only interested, at that time, in hearing the employee's own account of the matter under investigation.""

(BJ)

The employee has the right to representation. It is the union contract which states if that representation is union.

CuriousG

I believe that a line of logic could run like this. The employee is eligible to representation in a disciplinary investigative hearing. In the unionized workplace, the union is the sole legal representative of the employees in the bargaining unit. Therefore, a union representative (another member of the bargaining unit could probably do) would be the employee's representative in this instance.

I am not sure if the NLRB would agree, but it seems like a reasonable line of logic.