Your Right to have a union steward present during investigatory interviews
Since 1975, in the case NLRB v. J. Weingarten, the Supreme Court upheld the right of an employee to have a union representative present at an investigative interview which the individual reasonably believed might result in disciplinary action. Since then in 1992, the NLRB expanded the decision and concluded that, if a particular shop steward requested by an employee was available, he or she should be granted access to the worker. They concluded that it is a violation of Section 8(a)(1) of the National Labor Relations Act for an employer to select a shop steward more to management's liking than to the employee's, assuming both were available.
Limitations
You must ask for your steward Unlike Miranda rights, Weingarten rights exists to allow the union to represent the employee in any decision or procedure which might impact on the terms and conditions of employment, discharge, suspension etc. Management is only obligated to inform you of your Weingarten rights upon your request. The employee must assert the right for union representation. If he/she is silent the employer is allowed to proceed with the interview.
When can you assert your rights? At anytime and as many times as you need to, during any discussion, conversation or interview with anyone in management to include Postal Inspectors where you feel the discussion may lead to your being disciplined or terminated or affect your personal working conditions.
Caution Arguing with management over your right to have a steward present is not asking for one. Some supervisors will gladly debate the issue with you in an attempt to convince you you don't need a steward.
Other limitations>
Weingarten rights relates to investigatory interviews that is , interviews to elicit facts which may form the basis for discipline. No Weingarten rights attach to to a meeting for the purpose of merely announcing a disciplinary measure that the employer has already decided to take. However, if during the course of so called "counseling" interviews, the employer attempts to gather information which may become the grounds for later discipline, then Weingarten rights apply.
Management Obligations: You asked for your steward, now what?
Once an employee makes a request for union representation, management has one of three options.
1. Grant the request. If your request is granted, you must proceed with the interview.
2. Discontinue the interview.
3. Offer the employee the choice between continuing the interview without a union representative or having no interview at all.
Under no circumstances may management continue the interview without granting the employee's request for union representation, unless the employee voluntarily agrees to remain unrepresented, after having been presented the options. While an employee may at first refuse to request Weingarten rights, the employee may reassert them at anytime during the interview. Anytime the employee asserts Weingarten rights, management must present the three options and abide by the employee's choice.
Questions and Answers
May I have a steward present during a discussion? Short answer. No, since a discussion is not an investigative interview. Long answer. To constitute a discussion it must consist of these elements:
1. Be in private. Not on the workroom floor or with anyone else present.
2. Employee placed on notice of an employment deficiency.
3. Employee advised of how to correct the employment deficiency.
4. Employee advised of the consequences if correction does not occur.
Source: Article 16.2, Southeastern JCA
What if my union steward is not available?
If the steward you requested is not available, management may provide you with any steward or union official that is available.
Source: NLRA Section 8(a)(1) and Consolidation Coal Co., 140 LRRM 124B (1992)
Does Weingarten apply if a supervisor only asks me about another employee?
Yes, All Postal employees are required to cooperate in an investigation. Refusing to answer a question about another employee may result in you being disciplined.
Source: ELM 15.1 Section 666.6
Does Weingarten rights apply to interviews or interrogation by Postal Inspectors?
Yes, Postal Inspectors are an arm of management.
Source: Southeastern JCA, Step 4 remand with language in Case H1N-5D-C, dtd May 17,1985,
Article 17 Section 3, and of course Supreme Court Decision in Weingarten.
Source for Article: APWU Workshop: Representation During Interrogation by the Postal Inspection. July 2000
Instructor: Percy Harrison, Jr, National Business Agent.
