Weingarten Rights: protecting nurses at disciplinary meetings
From the Massachusetts Nurse Newsletter
February/March 2011 Edition
By Tom Breslin
Associate Director, Labor Education & Training
One of the basic principles that union members live by is their right to union representation in investigation meetings, known as Weingarten Rights. It is something that we teach in bargaining units, place in MNA contracts and mention to members in newsletters. I think we talk about these rights so often that we sometimes take them for granted.
Weingarten Rights became formalized after a 1975 U.S. Supreme Court case involving the National Labor Relations Board and the Weingarten Company. The case began after the company investigated an employee who it believed did not pay the full amount for a cafeteria lunch. The employee requested union representation during the interview and her request was denied. The court ultimately affirmed the right of union members to representation in the investigation process.
These days, knowing Weingarten Rights and when they apply is as important as ever. We are seeing more and more nurses getting disciplined. The discipline imposed also seems more severe now than in the past. Nurses have been called to their managers’ offices with no clue about what to expect and, the next thing they know, they are being investigated or disciplined. We can speculate about why that is, but it really does not matter. What we really need to remind ourselves of are the things we can do to protect members and maintain their rights under the contract.
Because MNA members are facing so many issues these days with difficult negotiations, staffing cuts, the dangers associated with the most recent form of work restructuring, Six Sigma and lean staffing, we may forget some of the basic principles that union members need to know.
The following points should be kept in mind when advising members of their Weingarten Rights:
- The right to union representation applies to those meetings which are investigatory in nature.
- The obligation to invoke those rights rests with the employee. Unless you have contract language to the contrary, management is under no obligation to inform a member of their rights.
- If the purpose of the meeting is only to impose discipline, Weingarten Rights do not apply. The member, however, should still ask for representation.
Once the request for representation is made, the employer has options. It can grant the request for representation, deny the request and end the interview or reschedule for a time when a union representative is available.
Once the MNA representative comes to the meeting, he/she should:
- Ask management for details of the investigation
- Consult with the member prior to the meeting on their memory of the incident in question
- Serve as a witness to what is said and the subject being investigated
- Object to intimidating tactics
- Advise the member on how to answer questions
- Raise extenuating circumstances when appropriate
- Take detailed and complete notes including who attends and what they say
- Ask the employer when it expects to make a decision on discipline
Some managers might say that the MNA representative is there only to take notes and, as such, may not participate in the meeting. This is incorrect. The representative has the right to be an active participant in the meeting. Otherwise, there is very little purpose in having them attend the meeting.
It is critical to keep in mind that the standard for determining whether union representation is necessary or warranted belongs to the member. When asked to attend a meeting with management, the member should always ask the purpose of the meeting and whether discipline might result from the meeting. If the answer is “Yes,” the member should then ask for representation. If, however, management says that no discipline will result, there is no automatic right to representation. The member should keep in mind that if the subject of the conversation begins to change and if the member begins to feel that they may be disciplined based on what the employer is asking; they can then invoke the right to representation. It is the employee’s reasonable fear that discipline might develop which triggers the right to representation.
Keep in mind that Weingarten Rights do not apply in situations like employee counseling or in meetings where new technology or procedures are reviewed. These meetings are not investigatory in nature and it would be a stretch to conclude that discipline might result.
Bargaining unit leadership would do well to make sure that everyone in the unit understands these rights and ensure that all MNA members know when to invoke them. The following should be distributed to the membership to use when they believe there is a need to invoke Weingarten Rights: “If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I respectfully request that my union representative or steward be present at this meeting.”
More information about this and other issues is regularly covered in the MNA Labor School. Classes are offered at the regional offices or can be designed for individual bargaining units.