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Weingarten Rights

In 1975 the United States Supreme Court in the case of NLRB v. J. Weingarten, Inc. 420 U.S. 251 (1975) upheld a National Labor Relations Board (NLRB) decision that employees have a right to union representation at investigatory interviews. These rights have become known as the Weingarten Rights.

During an investigatory interview, the Supreme Court ruled that the following rules apply:

Rule 1: The employee must make a clear request for union representation before or during the interview. The employee cannot be punished for making this request.

Rule 2: After the employee makes the request, the employer must choose from among three options:

  • grant the request and delay questioning until the union representative arrives and (prior to the interview continuing) the representative has a chance to consult privately with the employee;

  • deny the request and end the interview immediately; or

  • give the employee a clear choice between having the interview without representation, or ending the interview.

Rule 3: If the employer denies the request for union representation, and continues to ask questions, it commits an unfair labor practice and the employee has a right to refuse to answer. The employer may not discipline the employee for such a refusal.

Just Cause Termination

Just cause termination is a cornerstone of unionism. At the simplest level, it is what separates union members from non-union members. There are non-union members who have benefits and are paid well. But, at the end of the day, it is the fact that we can only be terminated for just cause that sets us apart and gives us strength. Union members don’t have to work in an unsafe manner because they fear being terminated. Union members can go to work and do their job knowing that they won’t be replaced unless there is just cause to replace them.

How do we determine what is or is not just cause? Some instances are obvious; when a job has come to the end or an employee has engaged in egregious behavior. Egregious behavior being conduct so bad that no one would need to be told it’s wrong. Theft and violence are egregious acts.

Outside of egregious behavior, just cause becomes a little cloudy. Because of this, union members should expect their employer to use progressive discipline when dealing with undesirable conduct. Progressive discipline is simply being given a verbal warning, followed by a written warning, and finally termination. The vast majority of situations are resolved with a verbal warning. A verbal warning prompts a conversation about what is going on and why an employee is engaging in a certain behavior.

There are seven tests to determine if a termination is for just cause. Employees should know and understand these tests top make sure they are being treated fairly. The first test is NOTICE. The employer must make sure the employee is aware of any rule they are allegedly violating, and the employee must be warned that they are violating a certain rule.

The next test REASONABLENESS. Is the rule reasonable, and has it been applied in a reasonable manner? The rule must be related to the orderly, efficient, and safe operations of the contractor. And the rule must apply equally to all employees.

If it has come to the attention that an employee has violated one or more work rules, the company must conduct a SUFFICIENT and FAIR INVESTIGATION. Before terminating an employee for an alleged infraction of the rules, the employer must conduct a full and fair investigation to ensure they are not responding to rumors personal bias. PROOF goes along with the investigation. Substantial evidence, not flimsy or subjective evidence, is needed before taking disciplinary action.

EQUAL TREATMENT goes along with reasonableness. The rule must be applied in a reasonable manner, equally, to all employees. An employer may not discipline one employee for engaging in the same behavior as the rest of the crew.

Finally there is APPROPRIATE DISCIPLINE. The punishment must fit the crime. For example, an employee would not expect to be terminated for being ten minutes late just once. An employee could expect a verbal warning, but termination would be unreasonable and inappropriate.

These seven tests, NOTICE, REASONABLENESS, SUFFICIENT INVESTIGATION, FAIR INVESTIGATION, PROOF, EQUAL TREATMENT, and APPROPRIATE DISCIPLINE, are not a secret. They are used by HR departments around the world, taught in every labor relations class in the country, and referenced by every arbitrator overseeing a labor dispute. Supervisors and employees alike should become familiar with these tests. Knowing these seven tests of just cause helps keep labor relations harmonious and operations running in a smooth and efficient manner. 

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