**Any CEA member should contact an association representative as soon as possible whenever they believe they may be in a disciplinary or pre-disciplinary situation.
The following Q&A are excerpted from the MTA Presidents Handbook 2010-2011, as prepared by MTA Division of Legal Services. For further information, contact MTA or QEA.
What is the basis of the so-called “Weingarten rights”?
These rights are based upon private- and public-sector collective bargaining laws. An employee’s right to representation in investigatory or pre-disciplinary meetings was established in a 1975 United States Supreme Court decision, NLRB v. Weingarten, Inc. The Massachusetts Division of Labor Relations, formerly known as the state Labor Relations Commission, has adopted the Weingarten rules for public employees covered by Massachusetts General Laws, Chapter 150E.
What situations give rise to Weingarten rights?
Employees have a right to the assistance of a union representative whenever the employer is seeking information from the employee about the employee’s own conduct (action or inaction) in situations where the employee reasonably believes that discipline could result. It is very important for members to understand that they must ask the union representative to be present — the employer has no obligation to advise them of this right. Weingarten rights apply where the employer is seeking information from the employee that could affect the employer’s decision about whether to impose discipline and/or what level of discipline to impose on that employee. For example:
- “Investigatory interviews,” where the supervisor is seeking to elicit facts, to have the employee explain his/her conduct, to discover the employee’s “side of the story” or to obtain admissions or other evidence.
- A supervisor’s request for a written statement or written answers to interrogatories about an incident or accident where the employee’s own conduct may be at issue.
- A meeting or discussion where the employer either has not yet decided whether to impose discipline or is seeking information to support that decision.
What situations DO NOT give rise to Weingarten rights?
- Where the meeting or discussion is merely for the purpose of conveying work instructions, training or needed corrections.
- Where the purpose of the meeting is simply to inform the employee about a disciplinary decision that has already been made and no information is sought from the employee.
- Where the employer has clearly and overtly assured the employee prior to the interview that no discipline or adverse consequences will result from the interview, provided the employer keeps that promise.
- Where, after the employer notifies the employee that he or she is being disciplined, the employee initiates further discussion.
What constitutes a “reasonable expectation” that discipline may result?
Whether the employee “reasonably expects discipline may result” is not determined by the employee’s subjective feelings. Instead, the question is whether any reasonable employee, given the same circumstances, would believe that discipline could result. For example: What did the employer say to the employee when announcing or initiating the meeting? Has the employer provided any oral or written warnings? Have there been oral or written allegations of misconduct? Has the employee been under scrutiny previously? Have other employees been disciplined for conduct similar to that being investigated at this meeting?
Does the location of the interview matter?
No. Although such interviews typically take place in the office of a supervisor, Weingarten rights would apply anywhere that an employee is being questioned and reasonably believes discipline could result.
What should the employee do if he or she is not sure whether or not a particular meeting calls for Weingarten rights?
Encourage members to ask for representation even if they are not sure they’re entitled to it. The employer cannot discipline an employee simply for asking. Employees could also ask whether or not the meeting could result in disciplinary action. If the employer answers “No,” the employer must follow through on that promise or risk violating the law. If the employer answers anything but “No,” the employee would be reasonable in asking for representation.
Cautionary Note: An employee may not be protected if he or she refuses to participate in a meeting that is subsequently found to lack Weingarten status. Therefore, we recommend that employees consult their union representatives for advice about their rights any time they are called to a meeting with the employer.
Does the employer have to inform an employee about Weingarten rights before conducting the meeting or interview?
Absolutely not. Weingarten rights are not like “Miranda warnings,” where the police must advise a suspect of his or her rights to remain silent and to have a lawyer present. Instead, it is up to an employee to know his or her rights and ask for representation in investigatory or disciplinary interviews.
How and when should an employee request representation?
The employee should request representation as soon as the employee becomes aware that the employer is seeking information that may result in discipline or that may support a disciplinary decision already made. The employee’s request does not have to be in any particular form, nor does it have to be in writing. Even words such as “Shouldn’t I have a representative here?” have been considered sufficient to assert Weingarten rights. The employee can make the request at any time, even in the middle of the meeting. However, the employer will be permitted to use any information obtained before the request has been made, as long as the employer provides Weingarten rights promptly upon the employee’s request.
Does the employee need to repeat the request for representation more than once?
No. It is incumbent upon the employer to provide Weingarten rights, even if the request is made to a lower-level supervisor who is not conducting the meeting and the request is not repeated at the outset of the meeting.
What are the Weingarten rights that the employer must offer after an employee has requested representation?
The employer has three lawful options:
- Grant the request and delay the interview or meeting until the representative arrives and has a chance to consult privately with the employee; or
- Discontinue the meeting or interview; or
- Allow the employee to choose whether to continue with the interview unrepresented or forgo the interview entirely.
If the employer insists that the meeting continue without a representative, may the employee refuse to answer questions or even leave the meeting?
Arguably “yes.” An employer cannot discipline or discharge an employee for refusing to surrender his or her Weingarten rights to representation. If it is truly a Weingarten situation, the employee may remain silent or even leave and return to his/her normal work duties.
However, given the complexity and unpredictability of the law, it is often more prudent for the employee to comply with the employer’s directives, knowing that he or she might later be able to overturn any discipline that results from the unlawful meeting. Otherwise, the employee risks being disciplined for insubordination.
Note: If the allegations are criminal in nature, such as assault or sexual assault, the right against self-incrimination may apply and the association should seek the assistance of MTA counsel before advising the employee how to respond to the questions.