By Kaitlyn Dunphy, Esq.
You may have heard a member of the association use the term “Weingarten rights”, but do you know where this name comes from and what these rights are? The term refers to a case the United States Supreme Court decided in 1975, National Labor Relations Board v. Weingarten.
Leura Collins worked at the food counter of a Weingarten store and was accused of theft by her employer, charges of which she was quickly cleared. But during the employer’s investigation, Collins requested the presence of a union representative and was denied this request. As a result of the ensuing litigation, the courts found that federal labor law gave him the right to have a union representative present during this investigative interview, and thus “Weingarten’s rights” were born.
Because the Weingarten case was decided under federal private sector law, Weingarten’s rights did not belong to members of the New Jersey public sector union until the Weingarten case passed. by the Public Employment Relations Commission (PERC) in 1979. much later, in 1996, than the New Jersey Supreme Court blessed PERC’s adoption of Weingarten’s rights.
What are Weingarten’s rights?
Weingarten’s rights allow a worker to request the presence and assistance of a union representative during an investigative interview that the employee has reasonable grounds to believe may result in disciplinary action. If the worker invokes these rights, the employer has the following options: allow representation at the interview, discontinue the interview or offer the employee the choice to continue the interview without representation or not to have an interview.
You will notice that the worker must request the assistance of a union representative. The employer has no obligation to automatically include the representative in the interview if a request is not made, which is why education around Weingarten’s rights is so important. The right must be invoked by the union member.
Weingarten’s rights only apply where the worker has an objectively reasonable belief that the interview may lead to disciplinary action. They do not apply to meetings where a disciplinary decision already made is communicated, or to other non-exploratory conversations with a supervisor, such as feedback, instruction, or training. That’s not to say union members are without rights in these scenarios, of course, but that Weingarten’s rights aren’t involved.
What should I do if the request is not honored?
Members should not refuse to attend a meeting called by a director, as this would expose them to charges of insubordination. Instead, you should attend the meeting and make your request for a Weingarten representative clear. You may request clarification of the purpose of the meeting to confirm that this is an investigative interview and that your belief in possible disciplinary action is reasonable.
You must insist on your Weingarten rights until the employer allows your representative to attend the interview, the interview is terminated, or you are offered the choice of an unrepresented interview or no interview. maintenance.
You should not answer any questions without your representative present. Note that you cannot require a particular union representative of your choice to be present, although you can certainly indicate your preference. The representative who attends the meeting may depend on their availability.
What is the role of the Weingarten representative?
The Weingarten representative is there to be the member’s witness and counsel at the meeting. However, the representative cannot obstruct the investigation or make it an adversarial procedure. The employer, on the other hand, cannot compel the representative to remain silent.
The representative is there to help the employee. They have the right to interview information that will enable them to carry out their duties as a union representative. They can ask for the employer’s questions to be clarified, object to bullying tactics, and inform the employer of additional information that supports the member’s position. The representative may also request a private huddle with the member and advise them on how to answer questions, although they cannot answer for the member.
In short, the Weingarten representative is there to support the member, protect his rights, protect himself against the employer’s excesses and help the member clearly state his position.
KAitlyn Dunphy is Associate Director of NJEA Member Rights and Legal Services on the NJEA Executive Office. She can be contacted at [email protected]