Weingarten Rights

Weingarten Rights

   Workers have an important right to on-the-spot representation in any situation involving actual or potential disciplinary action. It's something every steward and every member should know.

   If a member is asked to report to the boss’s office. The boss fires off a question. The member asks: "Could this meeting lead to discipline?" The boss says, "Maybe." The member responds, "I want to see my steward before I answer!"

   Legal? Yes! All union members can — and should — make this request if they’re being questioned by management about anything that could lead to disciplinary action. Bosses have no right to refuse.

THE WEINGARTEN CASE

   Why? Because of a 1975 case in which the U.S. Supreme Court ruled that all workers have the right to union representation when a supervisor or boss asks for information that could be used as the basis for discipline. This decision gave workers and unions specific rights called Weingarten Rights (from the name of the case). All union members in your workplace should know about them.

   (Public employees are not covered by Weingarten Rights under the National Labor Relations Act but are covered by similar state and/or federal regulations. Public employees should investigate how protections are provided in your state — they may well be identical to Weingarten.)

   A vital part of your job is to keep management from intimidating workers — especially when a boss is trying to get a member to admit to wrongdoing. Weingarten Rights won’t help if workers don’t know about them, because the boss doesn’t have to tell them. If they answer the questions, they’ve given up their right to representation.

FROM CONVERSATIONS TO CLOSED-DOORS

  Stewards should make sure members understand that if any discussion with management — from a closed-door meeting to a conversation with a supervisor on the job — could lead to the possibility of discipline, they should ask immediately for a steward or local officer. The request can be made at any point.

   Ideally, a member should say something like: "If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I request that my steward (or a union officer) be present. Without representation, I choose not to answer any questions. This is my legal right."

   Anything close to this statement will do. Any further attempt by a boss to ask questions is illegal until a steward arrives. If management denies a request for union representation, this is an unfair labor practice — and the member may refuse to answer any questions.

DON’T WAIT TO ACT!

   You can take your own action if you see a worker is in a meeting or conversation with management where they are in danger of being disciplined. You don’t have to wait for the worker to ask — you should make sure you’re part of that meeting yourself.

   When you arrive, check to see what the issue is about. Then meet privately with the member for a couple of minutes. Talk with them about questions that may be asked. Advise them to be careful — that anything they say could be used against them. Warn them not to volunteer any extra information, to keep answers short, and to stay calm. Remind them they’re not alone: the union is there to support them!

WHAT STEWARDS CAN DO

   During the meeting, you should take notes on what was said and who said it. Not only will this help you keep your facts straight, but it could make the boss nervous if he or she doesn’t have much of a case.

As a steward, your power includes:

Stopping the boss from harassing or abusing the worker;
Asking the supervisor to clarify any questions the member may not understand;
Advising the worker how to answer questions;
Providing the boss with additional information when the questions have ended.
Requesting a recess during the meeting if you need more time to talk privately with the member.
Requesting that the meeting continue another time if information is presented that requires additional investigation or preparation.


WHAT YOU CAN’T DO

   You cannot negotiate over the subject of the meeting. And you do not have the right to tell workers not to answer a question or to give untrue answers. Refusal to answer questions can be a reason for discipline. 

   If a worker’s steward is not available, another steward or union officer can be asked to attend. Workers also have the right to ask for a particular union representative, if both are equally available.

Here are a couple of final points to keep in mind:

   If a worker is asked to provide information about another employee, he or she also has the right to ask for a steward. Why? Because failing to answer could lead to disciplinary action — and, therefore, the right to representation.

   A worker can't leave the interview, they can refuse to answer questions until representation arrives, but they must not leave until instructed to do so by management.

   Management can have private conversations with workers that will not lead to discipline — issuing a warning or other disciplinary action, for example. On the other hand, workers should know that a casual conversation with a supervisor that starts harmlessly (over work, for example), but begins to lead to the possibility of trouble, can be stopped until a steward can be asked to be present.

EVERYONE IS REPRESENTED

   Local officers and stewards also have a right to be represented — don’t fall for a common employer line that stewards and officers ‘don’t need further representation.’ All union members have this right.

   Weingarten Rights can be powerful tool in doing our job of defending a member’s rights. But, remember, these rights are worthless if you don’t enforce them on the job!

   Thousands of workers die or are injured because of on-the-job accidents each year. Many more are exposed to unhealthy conditions that cause serious illnesses years later.

When does a worker have the right to refuse dangerous work?

   On February 26, 1980, the United States Supreme Court issued a landmark ruling which more clearly defined a worker's right to refuse work where an employee(s) has (have) reasonable apprehension that death or serious injury or illness might occur as a result of performing the work. The unanimous decision came in a 1974 case against Whirlpool Corporation in which two workers refused to crawl out on a screen from which a co-worker had fallen to his death only nine days earlier. A Cincinnati, Ohio appeals court ruled in favor of the worker's rights in "Whirlpool" and the Supreme Court affirmed that decision. (At the time the Supreme Court took the Whirlpool case, there were two other appeals court rulings that had been decided the opposite way. These cases were issued by courts in New Orleans (1977) and Denver (1978).

   The two workers in the "Whirlpool" case were told to go out on a screen 20 feet above the floor to retrieve small appliance parts which had fallen from a conveyor belt system above. The screen was in place to protect workers in the plant from falling parts. The retrieval assignment had resulted in other workers falling partially or completely through the screen. Claiming that the screen was unsafe, two employees refused to carry out the assignment. Whirlpool supervisors sent the workers home for the day and withheld about six hours pay.

   In its decision, the court emphasized that the OSHAct provides a worker with the right to choose not to perform an assigned task due to reasonable apprehension of death or serious injury coupled with a reasonable belief that no less drastic alternative is available. Further, the Court held that a worker who utilizes this OSHAct protection may not be discriminated against for such action.

   However, the Court also indicated that an employee who refused work based on the regulation runs the risk of discharge or reprimand in the event a court subsequently finds that she/he acted unreasonably or in bad faith.

   As noted, the employer docked the two workers about six hours pay in the Whirlpool case. The Supreme Court ruled that the OSHAct does not require an employer to pay a worker who refuses to perform an assigned task in the face of imminent danger. Rather, the Act simply provides that in such cases the employer may not discriminate against the involved worker(s). Thus, the Court has left this issue to be decided by labor and management through collective bargaining. Members of unions that do not negotiate the necessary protective language in their contracts should not expect to be paid for the refusal to work period. This will be true even where an employer is found guilty of violating the OSHAct. In light of the Supreme Court's decision, what should CWA members who are faced with an imminent danger situation do?

   The Supreme Court has said that a worker may refuse unsafe work where she/he has refused the job in good faith. Good faith may be interpreted as an honest belief that the job was unsafe and unusually and objectively dangerous.

   Good faith can be demonstrated by the manner by which you refuse unsafe work:

   Explain the hazard to the supervisor and your steward, Offer to do other, safe work until the hazard is corrected, Give management a chance to respond before doing anything else, If the condition isn't corrected, call OSHA and request an "imminent danger" inspection, Do not walk off the job. If management won't fix the hazard, force them to take the next step. Make sure you have expressed your reasons for refusing the job and your willingness to do other work, clearly and in the presence of your steward and/or other workers. If you're fired or disciplined:

   File a grievance immediately, File an unfair labor practice charge with the NLRB immediately but within 180 days, and File a Section 11(c) discrimination complaint with OSHA immediately but within 30 days. The bottom line is to stay cool. Don't let management provoke you into rash action that could hurt your case later.

   Proving that your job was "abnormally and objectively dangerous" is a matter of documentation:

   Was the job one you'd never done before? Or, had the conditions of the job changed recently? Did you protest the job before? Did other workers protest the job before? Did others refuse to do the job? Was the company in violation of OSHA, state, or local safety and health regulations? Many chemicals and conditions are clearly dangerous but aren't covered by any standards. Have workers been injured or made sick doing your job? Just what chemicals were you working with? If any CWA member refuses unsafe work, she/he should notify the local union president. In turn, this information should be made available to the CWA Representative and the CWA Occupational Safety and Health Department.

What Can You Do?

All CWA members should make sure that their employer is maintaining a safe and healthful workplace. The key to making the workplace safe for all CWA members is strong, active local safety and health committees. The committee can identify dangerous conditions at the workplace and discuss them with management. If the employer refuses to cooperate, the committee can request an OSHA inspection. The committee should always coordinate its activities through the local officers, the CWA Representatives, and negotiated safety and health committees.

In addition, CWA members may obtain information and assistance by contacting the:

CWA Occupational Safety and Health Department 501 Third Street, N.W. Washington, D.C. 20001-2797 Webpage: www.cwasafetyandhealth.org Phone: (202) 434-1160.

Read more at: http://www.cwa-union.org/pages/Right_to_Refuse_Unsafe_Work