PERC's New Decision on Weingarten Rights

This Advisor column was originally published in January 2011.

“Weingarten rights”, which derive from a U.S. Supreme Court decision, NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), provide that employees have the right to union representation at investigatory interviews when the employee reasonably believes that discipline will follow. Although the Weingarten case involved federal labor law, the rights articulated by the Supreme Court are recognized under Washington law. In a recent decision, the Public Employment Relations Commission (“PERC”) reviewed what rights public employees have under Weingarten in Washington and redefined the contours of those rights. The case involved an employee under investigation by the Omak School District.

Relevant Facts

The Omak School District was investigating one of its custodial employees. Before contacting the employee, the assistant principal told the employee’s union president what the investigation was about and instructed her not to tell anyone, including the employee under investigation. When the principal later sent the employee notice of his investigatory interview, the employee called the union president and asked her if she knew what the investigation was about. She said she didn’t know. The employee then contacted another union representative, who apparently knew what the investigation was about. The second representative shared that information with the employee.

The employee under investigation then contacted the principal and asked him to reschedule the interview so the second union representative could be present. He asked for a two-week extension. The principal refused and told the employee that the union president would be adequate representation.

When the employee showed up for the meeting with the union president, he told the principal he knew what the meeting was about and explained that he did not want the union president to represent him because she had been dishonest. Apparently, the discussion became heated and the employee cursed at the principal, threw his keys across the table, and left. He was later terminated. The union filed an unfair labor practice complaint accusing the District of violating the employee’s Weingarten rights.

The PERC’s Weingarten Rules

The case went to a Hearing Examiner, who ruled in favor of the School District. However, the union appealed to the full Commission, which disagreed and found that the School District engaged in a number of unfair labor practices. The Commission set forth the following rules on Weingarten rights:

1. When an employee makes a valid request for union representation, an employer has three options: (1) grant the request for union representation; (2) discontinue the interview; or (3) offer the employee the choice of continuing the interview unrepresented or of having no interview at all (and thereby foregoing any benefit the interview might have conferred on the employee.)
2. An employer may not continue an interview with an employee who has asserted his/her Weingarten rights without a union representative present unless the employee voluntarily agrees to continue the interview unrepresented and the employer has made the employee aware of the choices above.
3. When an employee asserts his or her Weingarten rights, the employer may only schedule the investigatory interview at a future time and place that provides an opportunity for the employee to consult with his union representative in advance, on his own time. However, employers are not required to postpone disciplinary interviews for an “unreasonable” period of time when a particular union representative is unavailable for reasons not attributable to the employer, as long as another representative is available. If the employee refuses and asserts that none of the available union representatives are satisfactory, the employer must either discontinue the interview or offer the employee the opportunity to continue the interview unrepresented.
4. An employer cannot refuse to inform employees, or their union representative, of the nature of the subject matter being investigated prior to an investigatory interview. The employer is not required to provide specific details, but a “general statement” that identifies the misconduct for which disciplined may be imposed is sufficient.

The School District’s Mistakes

According to the PERC, the School District violated the employee’s Weingarten rights in three ways. First, the District should not have instructed the union president to keep the subject of the investigatory meeting concealed from the employee. This act alone was an unfair labor practice.

Second, when the employee asked to re-schedule the interview and the District declined, the District should have informed the employee of his three options, i.e., (1) select another representative; (2) attend the interview unrepresented; or (3) cancel the meeting, which would result in the employee losing any benefit that the meeting could have provided. The Commission held that the District interfered with the employee’s protected rights and committed an unfair labor practice by failing to inform the employee of these three options.

Third, the Commission found the District unlawfully informed the employee that the union president would be an adequate union representative. According to the Commission, the employer did not have the right to approve, disapprove, or select the employee’s representative. When the employee asserted his Weingarten rights, the employer’s “only role” was to inform the employee of his three options.

The School District’s Lawful Actions

Although the Commission found the District violated the employee’s Weingarten rights, it also found that the District’s other actions were lawful. In particular, the Commission found that the District acted lawfully when it declined to postpone the interview two weeks and properly instructed the employee that he needed to select a different available representative.

Lessons Learned

In light of the PERC’s decision in Omak School District, Decision 10761-A (PECB, 2010), employers should re-evaluate their investigatory procedures and train supervisors and managers on the PERC’s new standards. It is particularly important for supervisors and managers to understand that when an employee asserts his/her Weingarten rights, an employer’s response should be limited to the three options outlined by the Commission (i.e., granting the request, discontinuing the interview, or offering the employee a choice between continuing unrepresented or having no interview.)

Employers should also always keep in mind that their own internal policies, labor contracts, and/or binding past practices may provide broader procedural rights than what Weingarten affords.