In most union shops or gigs, the union’s rep on the job is an employee who has been designated or elected as the shop steward. It is the job of the shop steward to be the union’s eyes and ears at the workplace. Stewards should advise other employees of their rights and sometimes help initiate grievances. But ultimately, stewards notify the union about grievances that do not get resolved at the initial stage. That’s when the union intervenes and assists.
At Local 802 workplaces, these functions are often exercised by a rank-and-file committee elected by the members of the bargaining unit. This practice is most common in established orchestras like the Lincoln Center groups as well as the many freelance orchestras. These rank-and-file committees are actually like a collective shop steward.
One of the most important functions of any shop steward, collective or individual, is to advise their constituents of their “Weingarten rights.”
THE RIGHT NOT TO BE ALONE
In the 1975 case NLRB vs. Weingarten, 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.
Thus, because not every employee, even one represented by a union, is aware of this right, it is part of the committee’s role to remind or alert the members of the bargaining unit that they have the right to such representation, by either the entire committee, or any member, or an official of the union.
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.)
- 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.
- 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 new 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 myself or fellow Local 802 attorney Harvey Mars. We both can be reached at (212) 765-4300.