THE WEINGARTEN RULE:
IT IS THE RIGHT OF AN EMPLOYEE TO THE PRESENCE OF A UNION REPRESENTATIVE AT A MEETING WITH THE EMPLOYER IF HE OR SHE HAS REASONABLE EXPECTATION THAT DISCIPLINE MAY RESULT.
THIS IS A PRIVATE SECTOR RULE MADE APPLICABLE TO THE EERA. (See Redwood CCC) V. PERB (l984) 159 Cal.App.3d 617)
AN EMPLOYEE'S RIGHT TO REPRESENTATION
The Court's decision in favor of the employees of both Weingarten, Inc. and Quality manufacturing Co., was based on the Justices' interpretation of Section 7 of the National Labor Relations Act. This section reads as follows:
"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in othler concerted activities for the purpose of collective bargaining or other mutual aid or protection..."
The Act enforces this right through its Section 8(a)(1), which reads:
"It shall be unfair labor practice for on employer to interfere with, restrain, or coerce employees in thc exercise of thc rights guaranteed in Section 7."
These rights are part of the Act because, according to the Court, "it is a goal of national labor policy to protect 'the exercise of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of...mutual aid or protection.'" (Section 1, of the NLRA.) To that end, the Act is designed to eliminate the "inequality of bargaining power between employees and employer " ( Weingarten, at pp. 261-2).
The request for a shop steward by the threatened employee is a basic expression of "concerted activity."
"The action of an employee in seeking to have the assistance of his union representative at a confrontation with his employer clearly falls within the literal wording of Section 7...This is true even though the employee a!one may have an immediate stake in the outcome: he seeks "aid or protection" against a perceived threat to his employment security. The union representative whose participation he seeks is, however, safeguarding not only the particular employee's interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly." ( Weingarten, at pp. 260-1)
The court concluded thct the NLRA in practice should allow the union to indicate its support of workers in such conflicts. "The representative's presence is an assurance to other ernployees in the bargaining unit that they, too, can obtain his aid and protection if called upon to attend a like interview." (Weingarten, at p. 261.) The Court argued that such a situation, though it may involve only an individual employee, is similar to the basic soildarity expressed by workers in strikes or job actions carried out on behaif of a fellow employee:
"When a!l other workmen in a shop make common cause with a fellow workman over his separate grievance, and go out on strike in his support, they engage in.a "concerted activity" for "mutual aid or protection," aIthough the aggrieved workman is the only one of them who has any immediate stake in the outcome. The rest know that by their action each of them assures himself, in case his turn ever comes, of the support of the one whom they are all then helping; and the solidarity then so established is "mutual aid" in the most literal sense, as nobody doubts." (Weingartern, at p. 261-quoting Houston Contractors Assoc. v. NLRB, 386 U.S. 664, 668-669 (1967)
Both Leura Collins and the three employees of Quality Manufacturing were unjustiy denied the right to union representation. The Court, agreeing with the unions on this basic point, set down specific guidelines for the application of this right to representation. As with many court decisions, the guidelines provide a framework for the exercise of a legal right.
THE COURT'S GUIDELINES
1.. .The employee must request the representative. The right arises only in situations where the employee requests representation. The employee may and wi!l forfeit this right if he/she goes ahead and meets with managernent without an Association Representative.
2.. .There must be a reasonable belief that discipline will result from the investigatory meeting. Regular "run-of-the-mill" conversations with management such as review of job requirements or training will not be covered. However the right to representation exists even in cases where no discipline does result from the interview. The right to representation is based on the reasonable belief of the employee, not anyone else in the situation.
3.. .The employer is not required to interview the employee. The employer may decide not to interview the employee, if the employee requests the presence of a union steward, but may continue the investigation. The employer does not have to justify hislher refusal to allow union representation. The employer is free to carry on the inquiry without interviewing the empioyee, and thus leave to the employee the choice between having an interview unaccompanied by his representive, or having no interview and forgoing any benefits that may be derived from one. If the employee refuses to be intervriewed without his/her Rep, the employer would then be free to act on the basis of information obtained from olher souroes.
Though this appears to leave the union and employee a choice to make, there is, in fact, nothing to be gained by meeting with management without one's union representative. An employer who is serious about resolving a problem should welcome a union's participation. The choice, then, remains with the employer.
4.. .The employer has no duty to bargain with the union representative at an investigatory interview. The representative is present to assist the employee, and may attempt to clarify the facts or suggest other employees who may have knowledge of them. The employer, however, is free to insist that he is only interested, at that time, in hearng the employee's own account of the matter under investigation.