The rights of unionized employees to have present a Union represenative during investigatory interviews were announced by the U.S. Supreme Court in a 1975 case. These rights have become known as the Weingarten Rights.
Employees have Weingarten Rights only during investigatory interviews. An investigatory interview occurs when a supervisor questions an employee to obtain information which could be used as a basis for discipline or asks an employee to defend his or her conduct. If an employee has a reasonable belief that discipline or other adverse consequences may result from what he or she says, the employee has the right to request Union representation. The employee can state “If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I request that my Steward or Union Officer be present at the meeting. Without representation, I choose not to answer any questions. This is my right under a U.S. Supreme Court Decision called Weingarten.” Management is not required to inform the employee of his/her Weingarten Rights; it is the employee’s responsibility to know and request.
When the employee makes the request for a Union representative to be present, management has three options:
1. They can stop questioning until the representative arrives.
2. They can call off the interview or;
3. They can tell the employee that they will call off the interview unless the employee voluntarily gives up his/her rights to a Union representative, an option the employee should always refuse.
The Union contract provides important rights to you as an employee, including salary, sick, and vacation leave, health insurance and many other guarantees and protections. One key provision is the requirement that management have “Just Cause” in order to discipline us. We should study our contract and become familiar with it. As a general rule, contractual rights are enforced through the grievance procedure. Grievances are handled by a Local Officer or Shop Steward who has expertise in handling employment –related matters.
As employees, especially public employees, we have many legal rights in addition to those provided by our Union contract. These rights are set forth by various state and federal laws and regulations.
Your Loudermill Rights
Most public employees have a constitutional right to a pre-termination hearing.
In a decision announcing a Constitutional right for public employees not possessed by private employees, the Supreme Court in Cleveland ruled Board of Education v. Loudermill, 470 US 532 Ed 2d 494 (1985) that most public employees are entitled to a hearing before they are discharged.
However, the hearing is not a full evidentiary hearing and need not include the opportunity to cross examine your accuser(s). All that is required is:
- Oral or written notice of the charges and time for hearing
- An explanation of the employer’s evidence
- An opportunity to present “his or her side of the story
Since the issuance of the Loudermill decision, the lower courts have strictly limited the remedy for Loudermill violations. Specifically, an employee deprived of his or her Loudermill rights is not entitled to reinstatement if the employer can prove that there was just cause for the discharge in any case.
If you are sent a certified letter or requested by management that you need to fill out a Loudermill report, please notify your steward immediately.
In addition, if management gives you an order to write a Tour of Duty about an employee, co-worker, or a given situation, contact your steward immediately!
This statement could save your job:
“If this discussion could in any way lead to my being disciplined or terminated I respectfully request that my delegate be present at the meeting. Without representation present, I choose not to respond to any questions or statements.”