Representing Members at Investigatory Interviews
When management meets with a union member (or telephones the worker at home) to ask questions about possible misconduct, the employee can request the presence of a union representative and refuse to answer until the rep arrives. These are known as Weingarten rights (from a 1975 Supreme Court case).
Weingarten rights apply to “investigatory” interviews, not to run-of-the-mill shop floor discussions. An employee who is unsure whether a conversation is investigatory should ask, “Could this meeting lead to discipline?” Unless the employer gives a firm no, the employee should request representation. The employee can select any available representative.
Unless required by the contract, employers do not have to alert employees about their Weingarten rights.
The union’s job at an investigatory interview is to (1) help the worker avoid making damaging admissions; (2) learn about the case; and (3) point out mitigating circumstances.
STEWARDS’ RIGHTS
As a union representative, you have four rights at a Weingarten interview:
1. On arrival, you can request the reason behind the meeting, i.e., the rule or misconduct being investigated. The employer must cooperate. If your request is ignored or denied, instruct the employee not to answer any questions until the employer complies with its Weingarten obligations.
2. Upon being told the reason for the interview, you may ask for a private meeting with the employee. This is called a “caucus.” The employer must give you adequate time and privacy.
3. When the interview resumes, you may raise objections to intimidating or confusing questions (but not to the point of blocking the interview). If the employee becomes rattled, ask for another private conference.
4. When the interview concludes, you must be permitted to cite extenuating circumstances that the employer should consider before imposing any discipline.
TIPS
Use the caucus to learn about the case and to explore possible defenses. Advise the employee not to act out, make insubordinate comments, or deny matters that are obvious (such as “Did you use your computer yesterday?”). Sometimes “I don’t remember” is the best response.
Snakes in a Truck
If an employee has an innocent explanation for what appears to be misconduct, she should voice it at the Weingarten interview instead of waiting until a grievance meeting or an arbitration hearing. A worker who puts forward an account from the beginning—even if it is farfetched—is more likely to be believed.
In a famous arbitration case, a truck driver testified that he crashed his truck because he saw a snake on the passenger seat, grabbed it with his hands to avoid being bitten, and attempted to steer with his knees.
Although the driver told this story from day one, he was fired for unsafe driving. Since there was no way for the employer to disprove the worker, and since the employer has the burden of proof, an arbitrator sustained a grievance protesting the worker’s discharge.
Explain to the employee that guilt can be inferred from a failure to deny a charge. On the other hand, if the evidence is ironclad, the employee’s best recourse may be to accept responsibility, apologize, and promise that the conduct will not be repeated.
Inform management that you wish to be present during any other interviews that are part of the investigation.
Take word-for-word notes of the interview.
Ask management for a chance to interview its witnesses.
MITIGATING CIRCUMSTANCES
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When appropriate at the end of the interview, you should raise one or more of the following mitigating or extenuating circumstances:
• The employee’s conduct was provoked by a supervisor or fellow employee.
• The company has not enforced the rule against other workers (a defense known as “lax enforcement”).
• The employee was not properly trained on the job in question.
• Other employees have received low-level discipline, such as verbal warnings, for similar infractions.
• The employee has an excellent record or long service, is a good worker, has good attendance, and gets along well with employees and supervisors.
• The employee suffers from a physical or mental condition, illness, or stress which may have affected his or her work or behavior.
• A supervisor’s inattention or negligence contributed to the events.
WRITTEN STATEMENTS
Clark Peters, a veteran grievance handler for ll99NE/SEIU, adds the following advice on written statements:
Employers sometimes ask workers to review and sign notes taken by the investigator during the interview. Beware: Once the notes are signed, management can use them as the worker’s written statement.
Before signing any notes, the worker and the union rep should read them carefully, pointing out any misrepresentations and insisting on any needed changes or additions. The union should ask for a copy and should advise the member ahead of time not to sign if the employer refuses.
A better alternative is to tell the employer that the worker would rather compose his or her own statement, with the union’s assistance. Ask for time to prepare a complete account and insist on privacy. Bring a laptop so the union will be sure to have a copy.
Compose the statement in chronological order without extraneous information. Don’t speculate, and keep it short. Go over the statement at least twice to make sure it is as accurate as possible.
If there is insufficient time to do a proper job, ask the employer for permission to turn the statement in later in the day or the day after.
Robert Schwartz, author of several labor law guides, is writing a new handbook on winning discipline and discharge cases. His workshop on this subject was the largest workshop at the April Labor Notes Conference.
