The National Labor Relations Act
The NLRA was enacted by Congress in 1935. It was hailed at the time and for many years after as the Magna Carta of America labor. Previously, employers had been free to spy on, interrogate, discipline, discharge, and blacklist union members. But in the 1930's workers began to organize militantly. A great strike wave in 1933 and 1934 included citywide general strikes and factory takeovers. Violent confrontations occurred between workers trying to form unions and the police and private security forces defending the interests of anti-union employers. Some historians believe that Congress adopted the NLRA primarily in the hopes of averting greater, possible revolutionary, labor unrest.
The NLRA guaranteed workers the right to join unions without fear of management reprisal. It created the National Labor Relations Board (NLRB) to enforce this right and prohibited employers from committing unfair labor practices that might discourage organizing or prevent workers from negotiating a union contract.
The NLRA's passage galvanized union organizing. Successful campaigns soon followed in the automobile, steel, electrical, manufacturing, and rubber industries. By 1945, union membership reached 35% of the work-force. In reaction, industrialists, and other opponents of organized labor sought to weaken the NLRA. They succeeded in 1947 with the passage of the Taft-Hartly Act, which added provisions to the NLRA allowing unions to be prosecuted, enjoined, and sued for a variety of activities, including mass picketing and secondary boycotts.
The last major revision of the NLRA occurred in 1959, when Congress imposed further restrictions on unions in the Landrum-Griffin Act.
The most important sections of the NLRA are Sections 7, 8, and 9. Section 7, is the heart of the NLRA. It defines protected activity. Stripped to its essential, it reads:
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 other concerted activities for the purpose of collective bargaining or other mutual aid and protection.
Section 7 applies to a wide range of union an collective activities. In addition to organizing, it protects employees who take part in grievances, on-the-job protests, picketing, and strikes.
Section 8 defines employer unfair labor practices.
Five types of conduct are made illegal:
- Employer interference, restraint, or coercion directed against union or collective activity (Section 8(a)(1))
- Employer domination of unions (Section 8(a)(2))
- Employer discrimination against employees who take part in union or collective activities (Section 8(a)(3))
- Employer retaliation for filing unfair-labor-practice charges or cooperating with the NLRB (Section 8(a)(4))
- Employer refusal to bargain in good faith with union representatives (Section 8(a)(5))
Threats, warnings, and orders to refrain from protected activities are forms of interference and coercion that violate Section 8(a)(1). Disciplinary actions, such as suspensions, discharges, transfers, and demotions, violate Section 8(a)(3). Failures to supply information, unilateral changes, refusals to hold grievance meetings, and direct dealings violate Section 8(a)(5).
Section 8 also prohibits union unfair labor practices, which include, according to legal construction, failure to provide fair representation to all members of the bargaining unit.
Section 9 provides that unions, if certified or recognized, are the exclusive representatives of bargaining unit members. It prohibits the adjustment of employee grievances unless a union representative is given and opportunity to be present, and establishes procedures to vote on union representation. The NLRA sets out general rights and obligation. Enforcing the Act in particular situations is the job of the NLRB,
“Weingarten Rights” - Union Representation During Company Interrogations
ONE OF THE MOST VITAL FUNCTIONS OF A UNION steward is to prevent management from intimidating employees. Nowhere is this more important than in closed-door meetings when supervisors or guards, often trained in interrogation techniques, attempt to coerce employees into confessing to wrongdoing.
The rights of employees to the presence of union representatives during investigatory interviews was announced by the U.S. Supreme Court in 1975 in NLRB v. J. Weingarten, Inc. Since that case involved a clerk being investigated by the Weingarten Company, these rights have become known as Weingarten rights.
Unions should encourage workers to assert their Weingarten rights. The presence of a steward can help in many ways. For example:
- The steward can help a fearful or inarticulate employee explain what happened.
- The steward can raise extenuating factors.
- The steward can advise an employee against blindly denying everything, (hereby giving the appearance of dishonesty and guilt.
- The steward can help prevent an employee from making fatal admissions.
- The steward can stop an employee from losing his or her temper, and perhaps getting fired for insubordination.
- The steward can serve as a witness to prevent supervisors from giving a false account of the conversation.
Note: Charges alleging a violation of Weingarten rights are generally not deferred by the NLRB. Nor are violations considered “de minimus” even if no employee is disciplined.
What Is an Investigatory Interview?
Employees have Weingarten rights only during investigatory interviews. An investigatory interview occurs when a supervisor questions an employee to obtain information which could be used as a basis for discipline or asks an employee to defend his or her conduct. If an employee has a reasonable belief that discipline or other adverse consequences may result from what he or she says, the employee has a right to request union representation. Investigatory interviews usually relate to subjects such as:
- DAMAGE TO COMPANY PROPERTY
- FALSIFICATION OF RECORDS
- POOR ATTITUDE
- VIOLATION OF SAFETY RULES
- WORK PERFORMANCE
Shop-floor conversations. Not every management Initiated discussion is an investigatory interview. For example, a foreman may talk to a worker about the proper way to do a job. Even if the boss asks questions, this is not an investigatory interview because the possibility of discipline is remote. The same is true of routine conversations to clarify work assignments or explain safety rules.
Nevertheless, even an ordinary shop-floor discussion can change its character if the supervisor is dissatisfied with the employee's answers. If this happens, the employee can insist on the presence of a union representative before the conversation goes any further.
Disciplinary announcements. When a supervisor calls a worker to the office to announce a warning or other discipline, is this an investigatory interview affording the worker a right to union representation? The NLRB says no, because the employer is merely answering a previously arrived-at decision and is not questioning the worker. Such a meeting, however, can be transformed into an investigatory interview if the supervisor begins to ask questions to support the decision . Note: An employer that has followed a past practice of allowing stewards to be present when supervisors announce discipline, must maintain the practice during the contract term. Refusing to allow a steward to attend would constitute an unlawful unilateral change.
Under the Supreme Court's Weingarten decision, when an investigatory interview occurs, 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. The employer must either:
- a. Grant the request and delay questioning until the union representative arrives and has a chance to contact privately with the employee; or
- b. Deny the request and end the interview immediately; or
- c. Give the employee a choice of: (1) having the interview without representation or (2) ending the interview.
Rights of Stewards
Employers often assert that the only role of a steward as an investigatory interview is to observe the discussion; in other words, to be a silent witness. The Supreme Court, however, clearly acknowledged a steward's right to assist and counsel workers during the interview. Decided cases establish the following procedures:
- 1. When the steward arrives, the supervisor must inform the steward of the subject matter of the interview, i.e., the type of misconduct for which discipline is being considered (theft, lateness, drugs etc.).
- 2. The steward must be allowed to take the worker aside for a private pre-interview conference before questioning begins.
- 3. The steward must be allowed to speak during the interview. However, the steward does not have the right to bargain over the purpose of the interview.
- 4. The steward can request that the supervisor clarify a question so that the worker can understand what is being asked.
- 5. After a question is asked, the steward can give advice on how to answer.
- 6. When the questioning ends, the steward can provide additional information to the supervisor.
It must be emphasized that if the Weingarten rules are complied with, stewards have no right to tell workers not to answer questions, or to give false answers.
Workers can be disciplined if they refuse to answer questions.
You may be familiar with the “Miranda warnings” given by police. The Miranda warnings notify criminal suspects of their rights, including the right to a lawyer and to remain silent. Unfortunately, the Supreme Court did not impose a notice requirement in its Weingarten decision.
Employers have no obligation to inform workers of their right to request union representation. This is the union's job.
Unions should explain Weingarten rights at meetings and in newsletters. A good way to get the word out is to distribute wallet-sized cards saying the following:
If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I respectfully request that my union representative, officer, or steward be present at the meeting. Without representation, I choose not to answer any questions.
On the other side of the card, print information about the union, such as office address, telephone number, and the names of officers. Tell members to present the card whenever they fear that what they say may affect their position.
QUESTIONS AND ANSWERS
Q. If I see a worker being interviewed in a supervisor s office, can I demand to attend the meeting?
A. Yes. A steward has a protected right to demand admission to a Weingarten interview. However, once the request is made, the employee being interviewed must indicate a desire for your presence. If the employee states that he or she wishes to be interviewed alone, the steward must leave.
Q. An employee was summoned to an interview with his foreman and asked for his steward. In response, the foreman said. "You can request your steward, but if you do, I will have to bring in the plant manager, and you know how temperamental she is. If we can keep it at the level we're at, things will be a lot better for you." Violation?
A. Yes. The foreman is threatening greater discipline to coerce the employee into abandoning his Weingarten rights. This is an unfair labor practice.
Q. An employee was ordered by her foreman to the personnel office for a "talk" about her attitude. She asked to bring a union representative but the foreman said she would have to make her request when she got to the office. Can she refuse to go to the office?
A. No. Weingarten rights do not begin until the actual interview begins. The employee must go to the office and repeat her request to the official conducting the interview. Only if a supervisor makes clear in advance to the employee that he or she intends to conduct an investigatory interview without union representation, does an employee have a right to refuse to go to a meeting.
Q. The company is recalling workers from a layoff and is insisting on medical examinations for those out of work three months or more. Can the workers demand a steward's presence during the examination?
A. No. Medical examinations are not investigatory interviews. Weingarten rights do not apply.
Q. Does Weingarten apply to a polygraph examination?
A. Yes. An employee has a right to union representation during the pre-examination interview and the examination itself.
Q. If management asks a worker to submit to a urine test for drugs, does Weingarten apply?
A. Yes and no. Since a urine test is not questioning, an employee does not have a right to the presence of a steward during the actual test. Management must, however, allow the employee to consult with a union representative to decide whether or not to take the test.
Q. Can management order a worker to open a locker without a steward being present?
A. Yes. Locker searches, car searches, or handbag searches are not interviews. Employees do not have a right to insist on the presence of a steward.
Q. An employee was given a written warning about poor attendance and told he must participate in absence counseling sessions with a member of the personnel department. Does the worker have a right to demand the presence of a union steward at the counseling sessions?
A. This depends on whether the employee has a reasonable fear that the counseling sessions could result in further discipline. If notes from the sessions are kept in the employee's permanent record, or if other employees have been disciplined after counseling sessions, the employee's fears would be reasonable and would entitle him to bring a steward. But if the employer gives firm assurances that the meetings will not be used for further discipline and promises that the conversations will remain confidential, Weingarten probably would not apply.
Q. If a worker is given a warning slip for misconduct and is asked to sign the slip to acknowledge receipt, must the employer permit her to consult her steward before signing?
A. No. Since the employer is not questioning the worker, Weingarten rights do not apply.
Q. Can a worker insist on the presence of a lawyer before answering questions at an investigatory interview?
A. Not where employers simply announce discipline. However, if the employer starts asking questions or tries to make the employee admit guilt, Weingarten would apply and the employee can insist on the presence of a steward or other union representative before answering.
Q. If a worker's steward is out sick, can the worker insist that the interview be delayed until the steward is available?
A. No. Management does not have to delay an investigation if other union representatives are available to assist the employee at the interview.
Q. If l am called in by my foreman to discuss my work record, do l have the right to a union representative?
A. Yes. Union stewards have Weingarten rights. If you fear discipline or other adverse action, you have the right to the presence of a union representative.
Q. Suppose a worker's request for a steward is denied. If the supervisor continues to ask questions, can the worker walk out of the office to get a steward?
A. In some cases, yes. According to NLRB decisions, when an employee is entitled to union representation and the employer denies the employee's request, an employee can refuse to participate in the interview, even to the point of walking out to seek a union representative. However, if the employee is told to wait while management gets the steward, the employee must stay in the office until the steward arrives.
Q. If the company calls a meeting to lecture workers about job performance, do the employees have a right to demand the presence of a union representative before attending the meeting?
A. No. Holding a meeting on work time which does not involve interrogation is not a Weingarten meeting. There is no right to a steward unless the employer begins asking questions of employees in a manner that creates a reasonable fear of discipline.
Q. If management refuses an employee's request for union representation, gets the employee to confess to theft, and then fires the employee, will the NLRB order the worker to be reinstated?
A. Probably not. The NLRB used to order the reinstatement of employees who were fired as a result of admissions during an illegal interview. But in 1984 the Board ruled that such a penalty was an unwarranted "windfall" for guilty workers. The standard Weingarten penalty is now limited to a bulletin board posting in which the employer promises not to repeat its violations.