Washington
Teamsters Members' Rights
Teamsters
have legal rights designed to protect them. Members should
arm themselves with a working knowledge of their specific
contract, as well as the legal rights mentioned below.
•WEINGARTN
RIGHTS
•LOUDERMILL RIGHTS
•GARRITY RIGHTS
EMPLOYEE'S
RIGHT TO UNION REPRESENTATION
("WEINGARTN 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 PRETERMINATION
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.
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FIFTH AMENDMENT APPLIES TO INTERROGATIONS
OF PUBLIC EMPLOYEES
(“GARRITY RIGHTS”)
Public employees have certain constitutional rights that apply
in their employment that may not apply to private employees. For example, in Garrity
v. New Jersey, the Supreme Court held that statements obtained in the
course of an investigatory interview under threat of termination from public
employment couldn’t be used as evidence against the employee in subsequent
criminal proceedings. If, however, you refuse to answer questions after you have
been assured that your statements cannot be used against you in a subsequent
criminal proceeding, the refusal to answer questions thereafter may lead to the
imposition of discipline for insubordination. Further, while the statements you
make may not be used against you in a subsequent criminal proceeding, they can
still form the basis for discipline on the underlying work-related charge.
To ensure that your Garrity rights are protected, you should
ask the following questions:
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.”
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Disclaimer: This website contains current developments and issues which may be of interest or useful to Unions and Union Members. Although every effort has been made to ensure accuracy, the information and recommendations herein are general in nature and should not be relied or acted upon without contacting the appropriate Teamster Local Union, Trust or State/Federal Agency or seeking legal counsel. This web site is an informational resource only and is not responsible for the content of any linked website. |
