Issue link: http://educator.cta.org/i/1487796
What are Weingarten rights? On e of a union representative's most important duties i s guarding against e m p l o ye r i n t i m i d a t i o n , p a r t i c u l a rly d u r i n g d i s c i p l i n a r y i n v e s t i g a t i o n s , w h ere th e employer m ay att empt to coerce employees into making incrim- inating statements against themselves or th eir colleagu es. For union-repre- sented employees, one backstop against c o e rc iv e i nv e st i ga t o r y i n t e r v i e w s i s Weingarten rights. Named for a United States Supreme Court case, NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), Weingarten rights have been extended to public employees under California's labor relations statutes. Sim- ply put, an employee has a right to request a union representative in an investigatory interview when the employee has a rea- sonable basis to believe that discipline may result from the meeting. e right to a union representative applies to inves- tigatory questioning that is written as well as oral. Weingarten rights must be asserted by the employee — the employer has no obligation to notify employees of these rights, and employees may choose to represent themselves if they wish. Keep in mind that Weingarten rights only apply to investigator y meetings that might result in discipline of the employee. ey Your Weingarten Rights You have a right to union representation during an investigatory interview By Richa Amar do not apply to other types of meetings with the employer, such as a meeting where an employer is merely notifying the employee of a disciplinary decision that the employer already made. Once the right is asserted, an employee is not entitled to their union representa- tive of choice. e employer may proceed with the investigator y questioning as long as another union representative is available at the meeting time. But if an employee's preferred union representative is available, the employer may not insist upon a different representative. Additionally, the union representative has the right to sufficient information about the nature of the employee's alleged wrongdoing before an investigatory inter- view takes place in order to allow for meaning ful representation. Th e union representative pl ays an important role as a witness and advisor in conn ection with th e investigator y interview. While the union representative cannot interfere with the employer's civil questioning of an employee, the union representative can ask clarifying ques- tions, take notes, assist the employee in providing additional information, and provide moral support. Are employees' communications with their union reps confidential? A union representative often will privately "caucus" with an employee before or even during an investigator y inter view. An employee might wonder if these private representational conversations are truly confidential or whether an employer can pry into them. Fortunately, they are confidential. Fed- eral courts, the National Labor Relations Board (NLRB), and the California Public Employment Relations Board (PERB) have long recognized the strong privacy interests in communications between union representatives and union mem- bers. Accordingly, they have found that employers who seek disclosure of the subst an c e of c onversation s b etwe en employees and their union representa- tives "manifestly restrain employees in their willingness to candidly discuss" employment matters with their union, inhibit the union from gathering neces- sary information from employees, and "cast a chilling effect" over all employees and union representatives who seek to candidly discuss employment matters. Richa Amar is a CTA Staff Attorney. 36 cta.org Advocacy Legal Beat