This lesson will focus on Weingarten rights, information requests and advocate-steward confidentiality. Every advocate should be familiar with a landmark Supreme Court decision concerning representation at investigative meetings, a union advocates right to necessary and relevant information, confidentiality rights between the member and the advocate. This lesson will introduce advocates to theses important topics. Students are required to read the Weingarten Supreme Court decision and the in-depth article about the rights and obligations derived from this decision.
In 1975 the United States Supreme Court rendered a landmark case that would lead to what is now know as “Weingarten Rights”. These rights are derived from a case that involved an employee who asked for but was denied a union representative in an investigatory meeting that concerned potential discipline. The court ruled that an employee is entitled to representation under certain conditions. The court ruled that the employee’s rights were violated under section 8 (a) 1 of the National Labor Relations Act (NLRA) because the employer had restrained, interfered, coerced the individual employee from engaging in protected activities, protected in accordance with section 7 of the NLRA. The decision is a reading assignment for this lesson plan. You will find the link to the decision within the reading assignment web page. It is important to note that the National Labor Relations Board (NLRB) denied “Weingarten” rights to non-union employees in 1988. Then in a reversal the NLRB in 2001, “Weingarten” rights were extended to non-union employees. However, in June of 2004, the NLRB overturned its decision for the fourth time in 22 years. The latest ruling denies non-union employees the right to have representation at a pre-disciplinary investigative meeting. Now we will review the conditions that must be met to be entitled to representation.
There are four criteria that must be met in order to qualify for representation in accordance with Weingarten. First, the meeting is on in which the employee has been summoned to a meeting to answer questions in connection with some wrongdoing or unacceptable behavior. The types of questions that are being asked appear to be an effort to solicit information that could result in discipline or adverse consequences. Second, the legal standard is that disciplinary action –of any severity- is possible as a result of the meeting. It does not matter if the supervisor is not intending to impose discipline at the start of the meeting. What matters is that questions are being asked, that when answered, could lead to discipline. Third, the law requires the employee to have a reasonable belief that discipline may be imposed. This is a judgment call on behalf of the employee and not the supervisor. It is the employee’s belief that counts. Often the employee will have a sense or an instinct that causes them to believe discipline could result. For instance has the supervisor raised the threat of discipline before for similar or same circumstances? Have other employees been disciplined for similar circumstances. Fourth, the employee must make the request for representation. The employer has no legal obligation to inform the employee of their Weingarten rights. The employee must request their rights. It is up to the employee to know their rights and inform the employer that no questions will be answered until their union representative arrives.
When the advocate arrives at the meeting they should immediately inquire about the nature of the meeting and the types of questions that will be asked. This way the advocate may determine if, in fact, the meeting is disciplinary in nature. Sometimes a member will ask for a union representative anytime the employer calls the employee into a meeting. Employees are not entitled to representation in all circumstances. The supervisor is permitted to conduct conversations with an employee, provide job instructions or conduct an evaluation so long as the threat of the discipline is absence. Should the advocate determine that the meeting is investigatory in nature the advocate should meet with the employee privately before the questioning starts. The advocate should solicit the facts to better prepare themselves and the employee. The advocate has the right to participate in the meeting. The employer has the right to insist the employee provide their own account of the situation or event that lead to the investigation but the advocate has the right to obtain clarification to questions that may seem unclear. The advocate may object to improper questioning and to supplement answers with other information that may assist the employees defense. It is critical the advocate should take complete and accurate notes. This can assist in later appeals of the discipline. Finally, in the event the employer denies representation and the employee is forced to answer questions a contractual grievance may be filed, legal remedies may be pursued, and an unfair labor practice charge may be processed.
This type of card is often distributed to union membership to advise them of their Weingarten Rights. Please be sure to read the article about Weingarten rights written by Robert M. Schwartz. He is a labor attorney and author of, “THE LEGAL RIGHTS OF UNION STEWARDS.”
The National Labor Relations Board has given legal protection to the confidentiality of conversations and other communications between members and their union officials. This privilege provides the a safe opportunity for the union member to “tell all” to the union advocate without worrying about whether the advocate will later be forced to betray those confidences. Also, if the information is shared with a higher union official the confidentiality will be preserved. The union has a responsibility to maintain that confidentiality, if requested, and guaranteed. If confidentiality is broken it should not be by a union official. The advocate should advise the member of the importance that they also maintain confidentiality.
The National Labor Relations act guarantees the rights of employees to be represented by the exclusive representative. Further it protects union advocates and union members to be free of intimidation, restraint and coercion as a result of the exercise of those rights. For this reason employers are prohibited from engaging in certain conducts that can be interpreted to be in violation of rights guaranteed under the NRLA. Let’s look at some examples of unacceptable actions. The employer can’t make intimidating statements in attempt to discourage an employee form filing a grievance. Such a statement as, “I don’t like when you call the union that could be trouble for both of us!” The employer may not retaliate because the union member filed a grievance. For example the supervisor the cancels the employee’s vacation soon after a grievance was filed. This could be considered a retaliatory act. The employer can’t increase the level of discipline after the employee seeks assistance form the union. Let’s say the supervisor was proposing a 5 day suspension but suddenly increases to 10 days after the union contacts the supervisor to inform her that the union will be representing the employee. Other examples of inappropriate actions by the employer are offering favors such as suggesting to the advocate they would stand a good chance of getting a management job if they would leave the matter alone. Rarely would such an offer come to fruition. It’s just used as an enticement to discourage the advocate from being a union pro-activist. The employer can’t require the advocate to disclose their notes or other information unwillingly. The employer may not tear up the grievance and refuse to process it. The NLRB considers such action to be a refusal to negotiate in good faith. Keep in mind the grievance procedure is a an extension of the bargaining process that occurred at the bargaining table resulting in a CBA. Another example of an employer impeding the union rights to represent its members is its refusal to meet with a steward not preferred by the employer. The union designates and elects its advocates, not the employer.
The advocate has a right to request and receive information that is necessary and relevant for the advocate to fulfill their duty as a representative. Such information is usually factual in nature. This may include date, general inquiries, information associated with a disciplinary and contractual grievances. Information associated with promotional and past practice grievances may also be requested. For a list of the specific type of records an advocate may request please refer to pages 223-224 of the textbook. For example if the advocate is processing a disciplinary grievance the advocate may need access to and copies of relevant documents contained in the grievant’s personnel file. This could include performance reports and previous records of discipline or commendation. The advocate may request information about other employees who have committed the same offense. For contractual grievances there are several possibilities of information, depending on the circumstances, the advocate may need to know. For example the advocate may request the employer’s relevant bargaining notes to determine intent. The advocate may request the dates, times, locations, and circumstances that the employer uses to establish its position of past practice. The key for the advocate is you can’t get the information if they don’t ask for it. By asking for and receiving relevant information the advocate will be better prepared to represent the employee. The burden is on the employer to show cause why it can not or will not supply the information that is requested. In most circumstances the NLRB and other enforcement agencies has been quite supportive of the union’s right to necessary and relevant information. That is not to say that the employer will not contest the information request. Typical excuses that employers use to deny information access will be discussed next.
It is not uncommon for an employer to offer excuses why it can’t provide the information that the advocate requests. More routine responses include the following: The union can get the same information from the employees. The request is to large. The information has already been posted. The grievance is not arbitrable. This is usually argued by the employer because timelines were missed or the issue is the exclusive right of the employer in accordance with management rights. The union can subpoena the information. The materials the union requested are privileged or confidential. All of the above reasons have been turned down by the National Labor Relations Board. As it stated earlier, the NLRB has been reasonably accommodating when it comes to the right of the union to access information. However there are some areas where the right to information is ambiguous.
An areas of that is ambiguous is confidentiality claims by the employer. Sometimes an employer has been successful with this argument. However, employer success has centered around sensitive information such as medical records, psychological data and aptitude test scores. Records that would disclose trade secrets or containing sensitive research data have been deemed confidential. Invoking a confidentiality defense by the employer requires that the employer has an established policy of barring disclosure and has consistently adhered to the policy. Nevertheless, if the employer invokes confidentiality then the employer must be willing to negotiate some reasonable accommodation that protects confidentiality. The employer has an obligation to provide information within a reasonable period of time after the request. Some information may require a longer period to respond than others but historically enforcement agencies have upheld the right of unions to receive the information promptly. In the event that information is not provided the union may file unfair labor practice charges against the employer. Only the union has a right to file charges. Individual employees, including the grievant do not have standing to file charges. An agent of the union drafting and filing the charge is not considered an individual. Review pages 223 and 224 of the textbook for a list of information examples that may be requested. The list is extensive, although not all inclusive.
Weingarten Card WEINGARTEN CARD (If called to a meeting with management, read the following or present this card to management when the meeting begins.) If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I respectfully request that my union representative, officer, or steward be present at this meeting. Until my representative arrives, I choose not to participate in this discussion.