Your Weingarten Rights
If a union could teach just one thing to its members, it would have to be about their “Weingarten rights”—the right of unionized workers to have a steward or someone else from the union present if they find themselves in situations where they might be disciplined.
Many workers crumble in the face of questioning by their supervisor or other management figure. They get rattled and start explaining, making excuses and/or apologizing, and often end up giving the employer ammunition to do whatever he or she wants. They become like the suspects you see in police shows on television: they “fess up” to things that perhaps never even happened or say things in such a way that they worsen the problem rather than help resolve the issue.
With few exceptions, workers across North America enjoy the legal right to have a steward or other union representative present if they find themselves in any situation with management—a conversation, a discussion, an interrogation—that could lead to disciplinary action. For private sector and federal government workers in the U.S., this protection is called Weingarten Rights, named after a 1975 Supreme Court decision. Most state workers and workers throughout Canada enjoy pretty much the same guarantees.
But unlike Miranda rights, which police are supposed to inform criminal suspects about (“You have the right to remain silent, anything you say may be used against you...”), employers do not have to tell employees about their Weingarten rights. Workers have to ask for them.
Be careful that you don’t give Weingarten more power than it has.
The rights do not extend to meetings where no questioning is involved, such as when one-way communication from the supervisor to the worker occurs. Weingarten also does not extend to a discussion about job performance without a threat of discipline.
At the same time, remember that workers do have the right to call Weingarten rights into play if they have any reasonable expectation that a disciplinary action may result from the meeting. The key word here is may.
If there’s the slightest concern that the session could bring about discipline, the worker has the right to ask for union help even though the supervisor who calls the employee in may not be intending to take such action. If other workers have been disciplined for similar alleged situations; if the worker being called in has had a previous discussion with the supervisor about discipline, or is working under the threat of a performance warning letter... any of these things can cause a worker to think that discipline may be an outcome of the meeting.
These Are the Basic Guidelines Covering the Use of Weingarten:
The employee must make a clear request for union representation before or during the interview. The worker can’t be punished for making such a request.
The employer must either grant the request and delay questioning until the union person arrives; deny the request, but end the interview at once; or give the worker the choice of going ahead without representation or ending the interview immediately.
An employer who denies the worker’s request for representation and continues to ask questions is committing an unfair labor practice. The worker can legally refuse to answer questions in such circumstances.
If the Employer Obeys the Law and Waits to Continue Until the Union’s Representative Arrives, the Following Rules Apply:
Once the steward arrives, the supervisor must inform him or her about the subject matter of the interview—the type of misconduct under discussion.
The steward and the worker should be allowed to talk privately before the questioning begins.
The steward can speak during the interview and, if necessary, ask that questions be clarified. The steward cannot bargain over the purpose of the interview.
The steward can advise the worker on how to answer any or all questions, can object to improper questioning, and has the right, once the questioning is ended, to provide additional information. The steward cannot tell workers not to answer questions, or to give false answers.