Unions are increasingly counseling employees to make liberal exercise
of their “Weingarten rights.” While unionized employees enjoy
Weingarten rights, it is sometimes unclear to administrators, and even
the employees themselves who are purporting to exercise such rights,
under what circumstances the rights apply. This article will
discuss Weingarten rights.
I. What are
Weingarten Rights?
Weingarten rights comprise an employee’s right to have union representation present, during a meeting with an administrator, that the employee reasonably believes could result in disciplinary action against the employee. The rights do not apply to non-unionized employees. Weingarten rights comes from the Illinois Educational Labor Relations Act (115 ILCS 5/3), as well as various state and Federal case law, principally, NLRB v. Weingarten, Inc., 420 U.S. 251 (1975).
A. When does an Employee have Weingarten Rights? An employee has a right to a union representative present when the employee reasonably believes that the meeting could result in disciplinary action against the employee and when the employee requests union representation for a meeting. Weingarten rights do not apply unless the employee makes a request for union representation. Further, Weingarten rights do not apply unless the employee has a reasonable fear that adverse employment action could be taken against the employee as a result of the information discussed during the meeting.
An employee does not have a right to have union representation during informational meetings, commonly referred to as “shop talk” discussions, the purpose of which is designed to give further instruction regarding job duties. However, as the guidepost is whether the employee reasonably believed that adverse employment action could potentially be taken against him or her as a consequence of the meeting, what constitutes “shop talk” is dependant upon the reasonableness of the employee’s fear of disciplinary action. Therefore, the safest course of action is err on the side of complying with an employee’s request for union representation, unless the administrator is willing to risk that a trier of fact could determine that the employee’s fear of disciplinary action was, in fact, reasonable under the circumstances involved.
Provided all of the requirements are met for the employee’s Weingarten rights to adhere, there is no “emergency” or exigent circumstances exception to the rule. However, if a decision has previously been reached as to the disciplinary action to be taken against the employee, Weingarten rights would not adhere for a meeting to simply provide notice to the employee of the disciplinary action being taken. If, however, the administrator will be asking questions of the employee, the steps below must still be followed.
II. How to Respond
To Request for Union Representation
If an employee makes a request for union representation for a meeting, and the employee’s fear of adverse employment action is objectively reasonable, the administrator has few options. The administrator may either: (1) re-convene the meeting, with the union representative present; or (2) terminate the meeting. Often, the employee will name a specific union representative that he or she wishes to be present. The administrator should make an effort to re-schedule the meeting for a time convenient for that certain representative. However, to the extent that the meeting is of a nature that time is of the essence and the specific union representative is not available, the administrator may invite another available representative to the meeting. Administrators may not, however, purposefully re-schedule the meeting for a time that it is known the specific union representative would not be available for no other reason than to frustrate the employee. If the administrator terminates the meeting, the investigation of the matter may continue through meetings with other employees.
A. No Requirement to Re-Schedule the Meeting. There is no requirement that the administrator reschedule the interview, or even have the interview at all, after an employee requests union representative to be present. After the employee requests union representation, the administrator may advise the employee that the meeting will end, and may not be rescheduled; however, the investigation will continue by the interview of other sources of information.
B. Waiver of Weingarten Rights. The administrator may further advise the employee that, unless he or she is willing to waive her right, the employee may not be interviewed at all and, therefore, not have an opportunity to tell his or her side of the story. If the employee agrees to waive his or her Weingarten rights, such waiver must be in writing and explicit as to the right waived. If the employee refuses to waive, the meeting should be ended immediately.
C. What to Do Before and During the Meeting with the Representative. Before the meeting with the union representative present, give the employee and representative an opportunity to consult in private. During the meeting, allow the representative to clarify facts or suggest other employees who may have knowledge of the facts. In addition, the representative may object to confusing questions and request clarifications, object to coercive or intimidating tactics, raise extenuating circumstances. It is important to allow the representative to participate in the meeting to this extent because he or she may later be called to serve as a witness as to the fairness, propriety, and thoroughness of the investigation.
While the representative should be given certain latitude in participating in the meeting on behalf of the employee, the representative’s authority over the meeting is limited. The representative may not insist that the interview be ended or answer questions for the employee. The administrator is free to insist, however, that he or she is only interested in hearing the employee’s own account of the matter under investigation. In addition, the representative may not counsel the employee to refuse to answer questions, for example, based upon a Fifth Amendment right to be protected from self-incrimination. An employee’s answers to the employer’s narrowly defined questions regarding conduct on the job, when required to answer as a condition of employment, may not be used in criminal prosecution of the employee.
III. Consequences of Violation
If Weingarten rights are not afforded to an employee under the proper circumstances, the employer’s refusal constitutes an unfair labor practice (ULP). Remedies for an ULP can include, but are not limited to, reinstatement of the employee (if terminated), back pay, plus 7% per annum interest, rescission of work rule or policy, Union’s attorney’s fees. Often, employers are required to post a public notice that it violated the law and that it will cease and desist from engaging in the unfair labor practice in the future.
IV. SPEED v. IELRB, No.
1-08-0344 (Ill. App., 1st Dist. 2009)
In the recent case of SPEED v. IELRB, No. 1-08-0344 (Ill. App., 1st Dist. 2009), the First District, Illinois Appellate Court, held that a fourth-year probationary teacher was entitled to have a union representative accompany her to remedial meetings with administrators to document the discussions and act as witness and advisor. In SPEED, the District’s principal placed the teacher on a “corrective action plan” designed to help improve her classroom performance as well as her communication skills as they relate to support staff. The plan called for periodic remedial meetings between the principal and the teacher where they would discuss and analyze certain material and evaluate her progress. The plan stated that unless the teacher corrected certain deficiencies by a certain date, there would be a recommendation to terminate her teaching contract.
A controversy arose between the principal and the teacher concerning the teacher’s insistence that she be accompanied by a union representative during the remedial meetings with the principal. The principal objected to the presence of the union representative at the meetings. After the teacher began making some improvement on the remediation plan, the principal, after several verbal altercations with the teacher and union representatives regarding their presence at the meeting, began marking negative results on the teacher’s evaluations. The teacher was eventually notified of her termination and the union filed a ULP. The IELRB granted the teacher relief, including reinstatement to her former position, which resulted in the teacher obtaining tenure.
The District contended that the remedial meetings pertained to performance rather than investigatory matters and therefore, the employee’s requests for union representation at the meetings fell outside of the contours of Weingarten rights. The District further argued that there were legitimate, non-discriminatory reasons for the teacher’s dismissal. The court disagreed with the District, finding that post-observation remedial meetings can sometimes result in a teacher’s discharge and that it would have been reasonable for the teacher to fear that her failure to comply with the remediation plan would result in the teacher’s discharge. Further, the court found that the principal’s refusal to grant the teacher’s request for union representation at the meetings to exhibit anti-union animus and that the teacher’s discharge was substantially related to the teacher’s insistence that a union representative be present for such meetings. Lastly, on appeal, the District argued that the IELRB was without authority to direct the District to reinstate the teacher when such reinstatement would result in the teacher obtaining tenure. The Court held that since the IELRA affords the IELRB the authority to take affirmative action to make the aggrieved party whole, reinstatement resulting in the teacher obtaining tenure was not outside of the scope of authority granted to the IELRB.
V. Conclusion
Weingarten rights violations are often used by unions as bargaining
chips in negotiating lesser forms of disciplinary action for
employees. Knowing how to deal with an employee’s proper or
improper invocation of Weingarten rights will help ensure that the
school’s investigations of employee misconduct and subsequent
disciplinary courses of action are executed smoothly and with minimum
labor conflict.
Prepared by: Zukowski Law Offices, © 2009
Note: These general suggestions are for general informational
purposes only and should not be regarded as a substitute for specific
legal advice to your organization. Instead, you should consult with
legal counsel whenever any question arises as to the organization’s
responsibilities.