One of the many benefits of belonging to our union family is the right to insist that a steward or union representative be present during all meetings or discussions with any manager or supervisor that might be related to or lead to discipline. These rights to witnesses are called Weingarten rights after NLRB v. J. Weingarten, Inc., a landmark U.S. Supreme Court decision. A UFCW member pursued this case and union members everywhere have these rights.
When workers exercise their Weingarten rights, a steward or union representative must be present as a witness to hear everything the worker and manager say, and to make sure the manager does not harass the worker. The presence of a steward or union representative also ensures that the manager does not question the worker unfairly by putting words in the worker’s mouth or by bullying the worker to agree to things the worker would not otherwise agree to. If the manager refuses to allow the witness to attend the discussion, the worker may refuse to answer the manager’s questions. And most importantly, the manager may not punish or fire the worker for insisting that the witness be present.
The UFCW’s Legal Department’s has compiled some answers to commonly asked questions regarding Weingarten rights, as follows:
When do workers have Weingarten rights to have a steward or union representative present when speaking to a supervisor?
Anytime workers think the manager may question them about something that the workers feel they might be disciplined for. EXAMPLE: An assistant manager asks to talk about an accident the worker was involved in during the previous week. The worker thinks the manager is trying to find out who was responsible. The worker has Weingarten rights.
What kind of “communications” does Weingarten apply to?
All kinds: in person, over the telephone, even e-mail. EXAMPLE #1: A manager telephones a worker. The worker thinks the manager may want to talk about something that happened at work that the worker could be disciplined for. The worker has Weingarten rights. The worker should tell the manager that the worker would rather talk in person in the presence of a steward or union representative. EXAMPLE #2: A manager approaches a worker while the worker is working on the salesfloor and starts to ask the worker questions about the worker’s tardiness. The worker has Weingarten rights. EXAMPLE#3: A manager approaches a worker in the break room or in front of the store while the worker is on break and starts to ask questions about the shelves in the worker’s department that the manager has warned the worker about before. The worker has Weingarten rights.
Does the communication have to occur at work?
No. EXAMPLE: A manager telephones a worker at home about the worker’s absences. The worker has Weingarten rights. The worker can tell the manager that the worker would rather speak at work in the presence of a steward or union representative.
When should workers invoke Weingarten rights?
As soon as the worker realizes that the manager may be asking about something the worker could be disciplined for. EXAMPLE #1: A manager tells a worker that the manager wants to talk tomorrow about a spill the manager says the worker should have cleaned up. The worker can tell the manager at that time or just as the meeting starts that the worker is invoking Weingarten rights and that the worker wants a steward or union representative to attend. EXAMPLE #2: The worker tries to invoke Weingarten rights and the manager “guarantees” that the worker will not be asked any questions. Then, half-way through the meeting, the manager begins to ask what happened. When the manager begins to ask questions, the worker should invoke Weingarten rights and refuse to answer any questions until a steward or union representative is present.
How do workers invoke Weingarten rights?
Workers must invoke Weingarten rights by telling supervisors they want a witness. Workers are not required to invoke their Weingarten rights if the contract prohibits the company from talking to workers without a witness. The best practice is for locals to bargain automatic Weingarten rights in contracts so workers don’t risk waiving them by forgetting to invoke their rights in the face of possible discipline. The next best practice is for unions to distribute Weingarten cards that workers can keep in their wallets to pull out and read to supervisors. Locals should periodically emphasize to workers that they should remember to refer to the cards whenever supervisors talk to them about discipline.
What is the representative or steward’s role?
First, the witness will hear everything everyone says and can take notes. Second, the witness can make sure that all of the manager’s questions are clear and that the worker has a chance to answer all questions in the worker’s own words. The witness can ask the manager to rephrase confusing questions or questions the worker doesn’t understand. Third, the witness ensures that managers treat workers fairly, give workers the chance to present their side, and makes sure that the manager does not abuse or harass the worker. EXAMPLE #1: A manager tries to put words in the worker’s mouth by asking, “so you admit eating the potato chips before paying for them.” The Weingarten witness can jump into the discussion and insist that the manager instead ask whether the worker first paid for the potato chips before eating them. EXAMPLE #2: A decent manager is truly trying to find out the facts, but asks a convoluted question. The Weingarten witness can ask the manager to rephrase the question so it is clear. EXAMPLE #3: A manager gets angry, starts shouting and doesn’t let the worker say anything. The Weingarten witness can insist that the manager let the worker answer in the worker’s own words.
What other rights does Weingarten give workers?
Workers or their witnesses may insist that the manager state what the interview is about and what kind of discipline might result. If the worker or witness feels the need for a break or the worker wants to talk things over with the witness, they can take a private break. During the break, the Weingarten witness should advise the worker to listen carefully to the question, tell the truth, answer in a few words as possible and only respond to what the worker knows first-hand. The Weingarten witness should also advise the worker to admit if he or she doesn’t know or can’t recall, not to guess, speculate or assume, answer in the worker’s own words, and request a break if needed. The Weingarten witness should also tell the worker not to sign any document until a representative or steward first reads it. Lastly, the worker has the right to present the worker’s side and make the worker’s defense.
What are the company’s obligations?
If the contract provides for automatic Weingarten rights, supervisors cannot meet with workers unless and until a steward or union representative is present. Otherwise, the company has three choices: grant the worker’s invocation of Weingarten rights, state what the discussion is about, and allow the worker and witness time to consult privately; deny the worker’s demand for a witness and immediately end the discussion; or give the worker the choice of continuing the discussion without a witness or ending the discussion. If the company refuses to allow the witness and nevertheless questions the worker, the worker has the right to refuse to answer without discipline. If the company continues to question the worker, the company violates the NLRA and the local can file an unfair labor practice charge.
If you have any questions regarding Weingarten rights, contact Associate General Counsel George Wiszynski at firstname.lastname@example.org.
Weingarten cards have been designed by the Communications Department to help members uphold their rights during these meetings or discussions and are available in English and 25 other languages (Albanian, Amharic, Arabic, Bosnian, Burmese, Cantonese, French, Haitian, Hakha Chin, Hindi, Hmong, Karen, Khmer, Kiswahili, Korean, Lao, Nepali, Russian, Serbian, Simplified Chinese, Somali, Spanish, Tagalog, Thai and Vietnamese). To order Weingarten cards, contact the Operational Support and Services Office at email@example.com.
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