It has been brought to my attention that there is a rule for disciplinary action in the symphony.  This thread is about that topic and how it is relating to the ASO.  

Anyone who has comments or suggestions about this should feel free to add their ideas.

KNOW YOUR WEINGARTEN RIGHTS – USE THEM OR LOSE THEM!

By Attorney Gay Semel

Question: Where does the right come from?

Answer: In the landmark Weingarten case, the United States Supreme Court rules that a union-represented employee has the right to representation during an interview with management if he or she reasonably believes that disciplinary action will result. Although the right to union representation usually arises during an “investigatory interview,” such an official setting is not required. Any conversation with management during which the employee is questioned and reasonably believes the questioning could lead to discipline triggers the right to union representation. (Note: Weingarten rights apply to private sector employees only. Unionized public sector employees usually enjoy similar rights but those are established by state law or collective bargaining).

Question: What is reasonable belief?

Answer: A “reasonable belief” is based on an objective standard. When all the circumstances are evaluated, is it reasonable to belief that continued discussion could lead to disciplinary action? If so, the Weingarten right arises.

Question: What must an employee do?

Answer: The employee must request union representation. The employer has no obligation to make sure a union representative is present during a meeting, or even to advise the employee of his or her right to union representation. Therefore, it is very important that the union educate bargaining unit members about their right to representation and when to ask for it.

Question: What happens after the employee asks for representation?

Answer: If an employee being interviewed by management asks to have union representation present, the request must be granted or the interview stopped.


Question: What if management continues the interview?

Answer: If management ignores a request for a union representative and continues the meeting, the employee should refuse to respond. The employee must be careful, however, not to do anything else that could be considered insubordinate. For example, the employee should not walk out of the interview. Rather, the employee should remain at the interview but advise the company representative that they are requesting a union representative and will not answer questions without it.


Question : Does the employer have to provide the union representation request by the employee?

Answer: No. If the employee’s regular union steward or other union representative is not available, the employer need only provide a union representative in order to lawfully continue the meeting. However, the employer cannot select a union representative more to the employer’s liking if the employee’s regular union steward or union representative is available.

Question: Must the employer allow time for the employee to consult with the union representative prior to continuing the interview?

Answer: Yes. When the union representative arrives at the meeting, the employee has the right to consult with the steward privately before the interview.

Question: During the meeting, what can the union representative do?

Answer: The investigatory interview is not a bargaining session or a grievance meeting and the employer is not obligated to bargain with the union representative. On the other hand, the employer cannot order the union representative to remain silent. The union representative is entitled to provide assistance and counsel during the interview. At the beginning of the interview, or when the union rep arrives, the rep must be told the nature of alleged misconduct (in our case, problems with playing or other behavior). During the meeting, the rep may request that a question or comment be clarified. The rep may give advice to the employee on how to answer a question. The steward and the employee may confer privately regarding any question and answer. When the meeting ends, the rep may provide additional, useful information. The rep may not tell the employee not to answer a question or to give a false answer. The rep may and should take notes throughout the interview.

Question: What should the union do if an employee is denied Weingarten rights?

Answer: If an employee advises the union that they request union representation and it was denied, an unfair labor practice charge would be filed with the National Labor Relations Board. Ultimately, if the Union wins at the Board, the employer will have to post a notice and, hopefully, will learn that Weingarten rights must be granted.

WEINGARTEN RIGHTS – THE RIGHT TO UNION REPRESENTATION

“Weingarten Rights” derive from a 1975 Supreme Court case NLRB vs. J. Weingarten, Inc. Essentially, they are the right to request assistance from union representatives during investigatory interviews, so that a representative may prevent management from coercing an employee into confessions of misconduct, either through threatening behavior, or simply through skilled interrogation techniques. The Union representative can:

• serve as a witness to the actual content of the investigation;
• object to intimidating tactics or confusing questions;
• help an employee avoid making “fatal admissions”;
• advise an employee, when appropriate, against denying everything, and thereby giving the appearance of guilt or dishonesty;
• counsel an employee against losing his/her temper;
• discourage an employee from informing on others;
• raise extenuating factors.

Weingarten Rights apply only in investigatory interviews (which include discussions of a person’s playing), that is, when management questions an employee to obtain information; and the employee has a reasonable belief that discipline (or other negative consequences) may result. If an employee is called in to an Employer’s office merely to be informed of a disciplinary decision, the courts have found that this is not an investigatory meeting. The decision to discipline the employee has already been made. However, if the Employer asks additional questions about the employee’s conduct, the meeting becomes an investigatory interview.

SAMPLE REQUEST FOR REPRESENTATION

“If this discussion could in anyway lead to my being disciplined or terminated, or affect my personal working conditions, I request that my union representative be present at this meeting. Until my representative arrives, I choose not to participate in this discussion.”

The employee may request union representation before, or at any time during the interview. At that point, the employer must either grant the request and delay the meeting until representation arrives; deny the request and end the meeting immediately, or give the employee the choice of having the meeting without representation or ending it immediately. If the employer denies the request for union representation and continues the meeting, the employee has the legal right to refuse to answer questions. However, it is a good idea to phrase the refusal in such a way that it cannot be interpreted as insubordination; for example, by saying that you are willing to write down their questions and respond once you have spoken to a union representative. Employers sometimes assert that the representative’s only function in these meetings is to observe the discussion (a “silent witness”), but this is not the case. The representative is also allowed to advise and assist the employee in presenting the facts. Once the representative arrives:

• The employer must inform the representative of the subject of the interview (the type of behavior being investigated);
• The representative must be allowed to meet privately with the employee before questioning begins;
• The representative may speak during the meeting, but cannot insist that the meeting be ended;
• The representative may object to confusing questions and request clarification (so that the employee understands what he/she is being asked or told);
• The representative may advise the employee not to answer questions that are abusive, misleading or harassing;
• When the questioning ends, the representative can provide information to justify the employee’s conduct.

THE EMPLOYER IS UNDER NO OBLIGATION TO INFORM EMPLOYEES OF THEIR RIGHT TO REPRESENTATION. YOU LOSE YOUR WEINGARTEN RIGHTS IF YOU DO NOT ASSERT THEM.

Any meeting with management or supervisory personnel is deemed disciplinary in nature if it touches upon any of the following items:

Absenteeism
Accidents
Compliance with work rules
Damage to Symphony Association property
Drinking
Drug Use
Falsification of records
Fighting
Insubordination
Lateness
Poor attitude
Poor work performance (musical competence)
Sabotage
Slowdowns
Theft
Violation of safety rules