Commission Issues “Primer” on Public Employees’ Weingarten Rights

By: Katherine F. Weber

So-called “Weingarten rights” are often the source of confusion for employers of union-represented employees. “When do these rights apply?”, “what is the extent of these rights?”, and “may an employee demand a particular representative?” are just a few of the questions often raised in the wake of NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), a pinnacle labor case that guarantees represented employees the right to union representation during an investigatory interview when the employee reasonably believes that such interview may lead to disciplinary action against the employee. The Washington Public Employment Relations Commission (the “Commission”) has consistently held that the rights announced in the Weingarten decision apply to public employees who exercise collective bargaining rights under Chapter 41.56 RCW. A recent Commission decision, Omak School District, Decision 10761-A (PECB, 2010), further clarifies these rights and the employer’s correlating obligations under Weingarten.

In Omak, the employer school district initiated an investigation into suspected misconduct by one of its custodial employees. In connection with the investigation, the employer notified the union president of the investigation and what it was about, but instructed the president not to inform the employee of the subject matter of the investigation. The employee subsequently received a letter from the principal, instructing him to appear for an investigatory interview the next day. This letter did not inform the employee what the meeting was about but did state that the meeting could lead to disciplinary action. When the employee contacted the union president about the notice, the president represented to the employee that she did not know what the investigation was about. The employee eventually learned about the nature of the investigation from a second union representative (the business agent).

Upon discovering the subject matter of the investigatory meeting, the employee contacted the principal and asked him to postpone the meeting until the business agent could attend. However, because the business agent would not be available for two weeks, the principal declined to postpone the meeting and informed the employee that the union president would be an adequate union representative. When the employee arrived at the investigatory interview, he informed the employer that he knew what the meeting was about and felt uncomfortable having the union president as his representative, given her dishonesty regarding her knowledge of the subject of the meeting. The discussion became heated and the employee eventually stormed out. When he was later terminated, the union filed an unfair labor practice charge accusing the employer of violating the employee’s Weingarten rights.

On appeal, the Commission found that the employer committed a number of unfair labor practices when it: (i) directed the union president not to disclose the nature of the interview, thereby refusing to inform the employee of the nature of the subject matter being investigated; (ii) insisted that the union president would be an adequate representative, thereby denying the employee the right to select who would or would not represent him at the meeting; and (iii) failed to inform the employee of his options under Weingarten once he invoked these rights.

In so holding, the Commission set forth the following explicit rules relating to an employee’s Weingarten rights:

• When an employee makes a request for union representation, an employer has three options: (1) grant the request; (2) discontinue the interview; or (3) offer the employee the choice of continuing the interview unrepresented, or having no interview at all, thereby foregoing any benefit that the interview might have conferred upon the employee.