If you’re a musician and you get called into a meeting with management where you think you are going to be disciplined, you should be aware of your right to have a union rep with you. The same applies to any employee in any setting, so long as there is either a union contract or bargaining relationship in place between your employer and the union. Below, we reprint an excerpt from a classic Allegro article from 2005 – written by the late Lenny Leibowitz – that explains your right to representation.
In the 1975 case NLRB vs. Weingarten 420 U.S. 251, the Supreme Court held that an employee who has been called into a meeting by the employer or a representative of the employer, and who “reasonably contemplates” that the meeting could lead to or result in discipline or dismissal, may request to be accompanied by a union representative. The employer must either accommodate that request, or terminate the interview.
“Requiring a lone employee to attend any investigatory interview which he reasonably believes may result in the imposition of discipline perpetuates the inequality the Act was designed to eliminate,” said the court.
A QUICK SUMMARY
In brief, here are the salient features of the Weingarten rights. Musicians should remember the following:
These rights apply only to an interview or interrogation that is attempting to develop the facts that might result in discipline to the interviewee;
These rights do not apply where the decision to discipline has already been made and the meeting is called merely to announce it;
The employee must request the representation, not the union, or anyone else – and the employer has no obligation to inform the employee of his or her rights. (It is not like the Miranda warning – “You have the right to remain silent” – which the police are required to relate to the interviewee.) If the employee doesn’t ask for representation, he or she forfeits the right.
The union representative may talk privately before, or even during the interview, but he or she may not disrupt the interrogation, for example, by instructing the employee not to answer.
The union representative may be an official of the union, a member of the orchestra committee, or the entire orchestra committee.
One of the employer’s options upon receiving a request from the employee is to simply stop the interview and impose discipline without it. This action, however, might give the union the right to argue at the arbitration that the employer violated the grievant’s right to due process by failing to conduct a full and fair investigation before imposing the discipline.
Although for a short while the courts held that even nonunion employees had Weingarten rights, the Bush NLRB reversed that ruling and the reversal was upheld. Therefore, Weingarten rights are only available to union-represented employees.
If there are any questions about these rights, feel free to call the president’s office at (212) 245-4802 or the office of Local 802 attorney Harvey Mars at (212) 765-4300.
Lenny Leibowitz (1938-2011) was the former counsel to Local 802 as well as a widely respected union attorney in the music industry.