EMPLOYEE'S RIGHT TO UNION REPRESENTATION
("WEINGARTEN RIGHTS")
The rights of unionized employees to have present a union representative during investigatory interviews were announced by the U.S. Supreme Court in a 1975 case (NLRB vs. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689). These rights have become known as the Weingarten rights.
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 the right to request union representation.
Management is not required to inform the employee of his/her Weingarten rights; it is the employee's responsibility to know and request.
When the employee makes the request for a union representative to be present, management has three options:

1–It can stop questioning until the representative arrives;
2–It can call off the interview; or
3–It can tell the employee that it will call off the interview unless the employee voluntarily gives up his/her rights to a union representative (an option the employee should always refuse.)

Employers will often assert that the only role of a union representative in an investigatory interview is to observe the discussion. The Supreme Court, however, clearly acknowledges a representative's right to assist and counsel workers during the interview. The Supreme Court has also ruled that during an investigatory interview management must inform the union representative of the subject of the interrogation. The representative must also be allowed to speak privately with the employee before the interview.
During the questioning, the representative can interrupt to clarify a question or to object to confusing or intimidating tactics. While the interview is in progress the representative can not tell the employee what to say but he may advise them on how to answer a question. At the end of the interview the union representative can add information to support the employee's case.

PUBLIC EMPLOYEES CONSTITUTIONAL RIGHT TO A PRE-TERMINATION HEARING
(“LOUDERMILL RIGHTS”)
In another decision announcing a Constitutional right for public employees not possessed by private employees, the Supreme Court in Cleveland Board of Education v. Loudermill held that most public employees are entitled to a hearing before they are discharged. However, the “hearing” is not a full evidentiary hearing and need not include the opportunity to cross-examine your accusers. All that is required is:
      1. Oral or written notice of the charges and time for hearing;
      2. An explanation of the employee’s evidence; and
      3. An opportunity to present “his side of the story.”
Further, since the issuance of the Loudermill decision, the lower courts have strictly limited the remedy for Loudermill violations. Specifically, an employee deprived of his Loudermill rights is not entitled to reinstatement if the employer can prove that there was just cause for the discharge in any case.

1) If I refuse to talk, can I be disciplined for the refusal?
2) Can that discipline include termination from employment?
3) Are my answers for internal and administrative purposes only and are not to be used for criminal prosecution?

   If you are asked to provide a written statement regarding the subject of the interview, the following statement should be included in your report:

“It is my understanding that this report is made for internal administrative purposes only. This  report is made by me after being ordered to do so by my supervisor. It is my understanding that refusing to provide this report could result in my being disciplined for insubordination up to and including termination of employment. This report is made pursuant to that order and the potential discipline that could result for failing to provide this report.”

 

THE SEVEN TESTS OF JUST CAUSE
Many Teamsters collective bargaining agreements contain a just cause provision, yet very few of them adequately define what it means. This has been left to the arbitrators.
In 1964, Arbitrator Carroll Daugherty established a single standard to determine if the discipline or discharge of an employee can be upheld as a just cause action."
In the Seven Tests of Just Cause, the employer must be able to answer YES to the following seven questions:

1. Reasonable Rule or Order
   Was the employer's rule or managerial order reasonably related to the orderly, efficient and safe operation of the business?
   
   This Rule or order must not be arbitrary, capricious or discriminatory and must be related to the employer's stated goals and objectives.
   
   Even if this order is unreasonable, the member MUST obey, except in cases when doing so would jeopardize health and safety.
    

2. Notice
   Did the employer give any warning to any possible discipline or consequence that could result from that employee's action or behavior?
   
   While maintaining the contractual right to manage it's workforce by establishing the rules and orders necessary, the employer is responsible for informing the employees as to their meaning and application.
   
   The employer must advise the employee that any act of misconduct or disobedience would result in discipline.
   
   This statement should be clear , unambiguous and inclusive of any possible penalties.
    

3. Investigation
   Prior to administering discipline, did the employer conduct an investigation to determine whether the employee did in fact violate or disobey a rule or order?
   
   The employer's investigation must be made BEFORE any disciplinary action is invoked.
   
   The employer is prosecutor, judge and jury in discipline cases, and must bear the full responsibility for collecting any and all facts that are relevant to the final decision.
    

4. Fair Investigation
   Was the investigation fair and objective?
   
   The employer has the obligation to conduct a fair, timely and thorough investigation that respects the employee's right to union representation and due process.
   
   Once gathered, all facts must be evaluated with objectivity, and without a rush to judgment.
    

5. Proof
   Did this investigation uncover any substantial proof of evidence that the employee was guilty of violating or disobeying a direct rule or order?
   
   Although there is no requirement  of being preponderant, conclusive, or "beyond a reasonable doubt", any proof or evidence must be truly substantial.
   
   While conducting the investigation, the employer must actively seek our witnesses and search for evidence.
   
   If an offence cannot be proven, then no penalty could ever be considered just.
    

6. Equal Treatment
   Did the employer apply all rules, orders and penalties evenhandedly and without discrimination to ALL employees
   
   If other employees who commit the same offence are treated differently, there may by discrimination or disparate treatment, both of which would automatically violate this test.
    

7. Penalty
   Was the degree of discipline administered reasonably related to either the seriousness of the employee's offense or to the record of past service?
   
   A proven offense does not merit a harsh discipline unless the employee has been proven guilty of the same (or other) offenses several times in the past.
   
   Though an employee's past record cannot be used to prove guilt in a current case, it can be used in determining the severity if guilt is established in the current case.
   
   Should two or more employees be found guilty of the same offense, their respective records will be used to determine their individual  discipline. Thus, if employee A has a better record than employees B or C, then the employer has a right to give a lighter penalty to employee A without being discriminatory.
   
   The employee's offense may be excused through mitigating circumstances. For example, a warehouse employee found asleep on the job may be excused by the mitigating circumstance of being under medication by the company doctor. Or an employee with domestic troubles may be proven incompetent rather than negligent, the latter indicating a willful deliberation.

Teamsters stewards who approach disciplinary hearings with the above Seven Tests in mind can often detect weaknesses in the employer's case. Even a seemingly hopeless case can be won, simply because just cause could not be established.