MRSC In Focus
› HR Advisor December 2004
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MRSC has joined with Janice Corbin and Janet May, Partners, Sound Employment Solutions, Rhonda Hilyer, President, Agreement Dynamics,and Bruce Schroeder, Employment/Litigation Attorney, Summit Law Group, to bring you the "HR Advisor" article series on employment and labor law issues affecting Washington local governments. The "HR Advisor" will feature a new article each month with timely HR management information and advice you can use.*
Frequently Asked Questions Regarding Weingarten Rights
December 2004
Bruce Schroeder
Employment/Litigation Attorney
and
Kristin Anger
Employment / Litigation Attorney
Summit Law Group
See also the January 2011 HR Advisor Column: "PERC's New Decision on Weingarten Rights," by Sofia D'Almeida Mabee, Employment Attorney, Summit Law Group, PLLC
It is imperative that public employers understand and observe employees' procedural rights during an investigative and disciplinary process. You may have an air tight case in terms of proving that an employee committed misconduct, but if you fail to afford that employee the procedural rights afforded by law or contract, you may face myriad problems ranging from an unfair labor practice charge to increased difficulty in getting your disciplinary decision upheld by an arbitrator.
One procedural area that employers need to understand is Weingarten rights. The "Weingarten" name is derived from a U.S. Supreme Court decision, which held that an employer violated the labor laws by denying an employee's request for union representation during a disciplinary hearing. Although the actual Weingarten decision involved a private sector employer subject to the federal labor laws administered by the National Labor Relations Board, the employee rights articulated in the Weingarten decision have been held applicable to public employees in the State of Washington pursuant to RCW 41.56. Thus, it is important for public employers in Washington to afford union-represented employees their Weingarten rights.
Although the Weingarten decision has been around for nearly 30 years, there continue to be questions about the parameters of Weingarten rights. Given the number of inquiries public employers continue to make about their obligations under Weingarten, we thought it might be helpful to provides answers to the most commonly asked questions in this area. Please note that the following questions and answers are based on Weingarten rights developed under the law. You may be subject to collective bargaining agreements that provide for broader procedural rights than those recognized under Weingarten, so it is also critical that you know what rights your labor agreement provides.
Common Weingarten Questions:
| Q: | When, exactly, do Weingarten rights apply? Do I have to allow union representation every time I talk to an employee I supervise? |
| A: | No, you do not have to permit union representation every time you talk to a subordinate employee. Weingarten rights are triggered when you will be interviewing an employee and he or she has a reasonable belief that the interview will result in disciplinary action. If you are merely announcing or reviewing a disciplinary decision that has already been made, Weingarten does not apply. Weingarten rights are also inapplicable to meetings that are part of a performance evaluation process, and to casual "shop floor" conversations. In other words, employees cannot insist on union representation every time a manager wants to talk to them. |
| Q: | What if the employee I want to interview is merely a fact witness, and is not the focus of the investigation I am conducting? |
| A: | If the employee to be interviewed is merely a fact witness, and will not be potentially subject to discipline based on the interview, Weingarten rights would not be triggered. Sometimes, however, the focus of your investigation may change during the investigation process. You may begin an interview believing that an employee is simply a fact witness, but during the course of the interview the employee provides information that implicates himself/herself in the misconduct you are investigating. If you find that the character of an interview changes during the course of the interview, and that the employee you are interviewing may now be subject to discipline based on the interview, you may need to adjourn the meeting and afford the employee his or her Weingarten rights (if the employee has requested union representation). |
| Q: | Am I obligated to advise an employee of his or her Weingarten rights if I know that an interview may result in discipline of that employee? |
| A: | Generally, it is up to the employee to request union representation, and an employer need not advise the employee of the right to union representation or offer representation before conducting an investigatory interview. This is one area, however, where you will want to consult the applicable labor agreement. Some collective bargaining agreements, particularly those in law enforcement, impose notice obligations in connection with any investigatory interview. |
| Q: | Under Weingarten, do I have to allow an employee to bring his/her private attorney to the interview in lieu of or in addition to a union representative? |
| A: | No. Weingarten rights arise under the collective bargaining laws, and therefore focus on the right to union representation. Weingarten does not require employers to permit an employee to bring a private attorney to an investigatory interview. |
| Q: | Can the union insist on bring multiple representatives to an investigatory interview? |
| A: | No. The Public Employment Relations Commission (PERC), which administers the state collective bargaining laws for public sector employers, has held that an employee who will be subjected to an investigatory interview is entitled to a single union representative. The union cannot insist on having additional representatives attend the interview for the purpose of representing the rights of other employees who may be affected by the information provided during the interview, for example, or for the purpose of representing the union's interests generally. |
| Q: | Do non-represented employees have Weingarten rights? |
| A: | No. Weingarten rights are only applicable to those employees who have union representation. A few years ago, the National Labor Relations Board (which administers the federal labor laws governing private sector employers) issued a decision extending Weingarten rights to non-union employees. The NLRB reversed that ruling in 2004, however, and held that Weingarten is inapplicable in a non-union setting. The PERC has never extended Weingarten to non-union employees. Thus, under current law in both the private and public sectors, Weingarten rights apply only to represented employees. |
| Q: | What do I do if the employee requests union representation, but informs me that the union's business representative is not available for at least a week? |
| A: | Generally speaking, an employee's exercise of the right to union representation must be balanced against the employer's need to conduct a timely and efficient investigation. The exercise of Weingarten rights cannot unduly interfere with the employer's legitimate needs. If possible in the context of what you are investigating, you should demonstrate some flexibility and reasonableness in allowing an employee to secure union representation. Giving an employee five minutes to find a union representative, for example, could be viewed as unreasonable, and insisting on proceeding with the interview where the employee could not secure representation in such limited time would likely constitute a Weingarten violation. On the other hand, an employer is not obligated to put off an interview for an extended period until the employee's choice of representative can be available. If an employee says it will be a week before the union agent can be available, you should explain that such a delay would interfere with a timely investigation (assuming that's the case) and that the employee should locate an alternative representative.
Unfortunately, there are no bright line rules with respect to how much time an employer must give an employee to secure union representation. It will turn on the need for the prompt investigation under the circumstances at hand, as well as how much time the employee is requesting to secure representation. For example, if you want to interview an employee because you have a reasonable suspicion that he is then under the influence of alcohol, you have an urgent need to investigate the situation immediately; if you waited a day to schedule the interview to allow the employee's choice of union representative to attend, your ability to investigate would obviously be compromised. In these situations, you can insist that the employee locate a shop steward or other union representative who could be available more readily. In other cases, however, it may not undermine your investigation to accommodate the employee's request and the availability of a particular union representative. The bottom line is that as long as you demonstrate reasonableness as to scheduling under the circumstances, Weingarten should be satisfied. |
| Q: | Do I have to tell the union representative what the matter is about before the interview begins? |
| A: | A union representative is entitled to a general idea about the purpose of an investigatory interview in advance of the interview. In cases where the actual interview leads you into a new subject area that you did not expect to cover when you began the interview, you should typically advise the union representative that you would like to pursue a new topic. You can offer to take a break in the interview so that the union representative can consult with the employee before pursuing the new subject during the interview. |
| Q: | What is the role of the union representative during the investigatory interview? Can the representative try to speak for the employee, demand caucuses with the employee and/or ask questions? |
| A: | The union representative's role is to be a witness, and also to point out information that may be helpful to the employee. For example, the union representative may interject questions to elicit information favorable to the employee, or suggest additional lines of inquiry. One or more brief caucuses with the employee should also be permitted, to allow the union representative to provide counsel to the employee. The union representative may also object to questions (although you can still ask them if you disagree that the questions are not inappropriate). While the union representative can thus be more than an observer, he or she should not attempt to answer questions for the employee or turn the interview into a mini-arbitration or hearing. You are entitled to ask your employee questions, and to receive information directly from the employee. |
| Q: | What do I do if the employee declines or fails to request union representation at the outset of the interview, then suddenly asks for union representation in the middle of the interview? |
| A: | Assuming the meeting is one to which Weingarten rights would apply, you should respect the employee's request for union representation. You can adjourn the interview temporarily to allow the employee to secure a union representative. |
| Q: | Do Weingarten rights apply in a Loudermill hearing? |
| A: | Technically, Weingarten does not apply to a Loudermill (i.e., pre-disciplinary) meeting. Loudermill rights are distinct from Weingarten rights. Loudermill rights arise from a public employee's due process rights, and entitle the employee to notice of the charges against him/her and an opportunity to respond to those charges. Thus, the purpose of the Loudermill meeting is generally to hear from the employee after the tentative disciplinary determination has been made. An employer is not typically going to continue the investigative process by asking the employee additional questions, which is what triggers an employee's Weingarten rights. Thus, Weingarten would not usually apply to a Loudermill hearing.
There are a couple of caveats in this area. First, if the employee provides information during the Loudermill meeting that prompts the employer to ask follow-up questions, the union may argue that Weingarten was triggered. Additionally, many employers have labor agreements, policies or practices that afford employees the right to union representation at a Loudermill meeting, so this is another area where you will definitely want to consult your labor agreement and other applicable policies. |
| Q: | What are the consequences of failing to afford an employee his or her Weingarten rights? |
| A: | The consequences of a Weingarten violation can be significant. The union may pursue an unfair labor practice charge with the PERC. In addition, it is quite possible that any discipline of the employee whose Weingarten rights were violated could be overturned. Arbitrators often consider whether the employer afforded the employee all procedural rights when evaluating whether there was just cause for discipline. In addition, arbitrators may well exclude any evidence that was obtained from an improper interview. |
| Bruce Schroeder is an employment / litigation attorney with Summit Law Group, Seattle. Bruce's practice is concentrated on representing management in the entire range of employment law matters. More. |  |
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Janice Corbin is a partner with
Sound Employment Solutions, LLC, Seattle. Janice has over 15 years of
human resources experience with the Seattle Police Department and the
International Harvester Truck Company and has worked in the law enforcement
field for over 22 years.
More. Janet May is a partner and attorney with Sound Employment Solutions, LLC, Seattle. Janet has over ten years of experience in the labor and employment law field, and has represented both management and labor. More. |
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| Rhonda Hilyer, President and Founder of Agreement Dynamics, is an international consultant with a reputation for helping convert traditional, conflict-based environments into productive, collaborative ones. More. |  |
*The Articles appearing in the "HR Advisor" column represent the opinions of the authors and do not necessarily reflect those of the Municipal Research & Services Center.