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Management and Employee Rights and Responsibilities in Disciplinary Meetings

When does an employee have the right to have a representative present during meeting with supervisors? This is an often misunderstood topic for both employees and administrators. This handout is not designed to turn employees into "armchair attorneys" or to circumvent negotiated contracts and policies; it is intended to clarify the rights and responsibilities of all parties involved in matters that may become disciplinary in nature. These rights are derived from federal decisions and apply across the country in both bargaining and non-bargaining states.

Part I - The Weingarten Decision and the Right to Representation

"HEY, THE BOSS JUST CALLED ME INTO THE OFFICE…"

By Steve Diamond, Institute of Industrial Relations University of California, 1984.

In June 1972, Leura Collins, a lunch-counter sales clerk for the J. Weingarten, Store No. 98, in Houston, Texas, was called into her Manager's office and interrogated by the Manager and an undercover investigator employed by the store. Unknown to Collins, the investigator had had Collins under surveillance for the previous two days. He had been investigating a report that Collins was stealing money from the lunch counter cash register. His investigation had turned up no evidence of wrongdoing, but the store manager had received a report from another employee that Ms. Collins 'had purchased a box of chicken that sold for $2.98, but had placed only $1.00 in the cash register.' During the questioning regarding this incident, Ms. Collins requested that her shop (union) steward or another union representative from her union, Local 455 of the Retail Clerks, be called into the interrogation session. Her repeated requests for such assistance were denied. In response to questions about the chicken, Ms. Collins explained that she had only taken a dollar's worth of food, but had used a larger box to place it in because the store had run out of smaller boxes. The investigator left the office and confirmed this fact with other store employees. Upon return to the interview he 'told Collins that her explanation had checked out, that he was sorry if he had inconvenienced her, and that the matter was closed.' Collins broke down and began to cry. She 'blurted out that the only thing she had ever gotten from the store without paying for it was her free lunch.' The manager and investigator were surprised by this admission, because free lunches were not allowed at this particular store. They once again began an interrogation of Collins. She once again requested the presence of her shop steward, and the store manager again denied her request. During the course of the questioning the investigator asked Collins to sign a statement that she owed the store approximately $160 for lunches. She refused to sign the statement. Collins pointed out that in Store No. 2 of the Weingarten chain, where she had worked for nine years prior to her transfer to No. 98, free lunches were regular policy. When Weingarten, Inc., headquarters confirmed this fact, the interrogation was ended and Collins left the store manager's office. Though told to keep the matter to herself, Collins, 'reported the details of the interview to her shop steward and other union representatives' and an unfair labor practice charge was filed. On February 19, 1975, the [Supreme] Court issued a decision," the employee [Collins] had been the victim of an unfair labor practice (NLRB v. J. Weingarten, 420 U.S. 251). An important new right for workers came out of this decision: an employee may be represented by the union at an investigatory interview with his/her employer when the employee reasonably believes that the interview may lead to disciplinary action. The U.S. Supreme Court issued in their Weingarten decision guidelines that clarify a unionist's right to representation during an investigatory interview. 1. The employee must request that a union representative be called into the meeting with management. 2. There must be a reasonable belief that discipline will result from the investigatory meeting. 3. The Court's decision does not force the employer to interview the employee. "Though this appears to leave the union and employee a choice to make, there is, in fact, nothing to be gained by meeting with management without one's union representative. An employer who is serious about resolving a problem should welcome a union's participation. The choice, then, remains with the employer." 4. The employer has no duty to bargain with the union representative at an investigatory interview. However, the employer cannot force the shop steward to be silent and the union should take advantage of this to help the employee as much as possible. (NLRB v. Texaco, Inc., 108 LRRM 2850, 2851, Oct. 16, 1981) Since 1972, subsequent court decisions have expanded the Weingarten Decision.

Part II: The Rules of Representation

WEINGARTEN RULES

In accordance with the Supreme Court's Weingarten decision, when an investigatory interview occurs, the following rules apply: