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When Questioning by the Boss Could Lead to Discipline... Ask for a Union Steward
When management begins to ask you questions that could lead to your being disciplined, you don't have to face it alone.
If you have a reasonable belief that answers you give could be used by the boss to discipline you, the U.S. Supreme Court says you can refuse to answer any questions until the union steward is on the scene and has had a chance to talk things over with you first.
It's your right to have the steward present during the questioning to advise you, ask supervisors for clarifications, and provide additional information at the end of the session.
If you are called at home and asked the same kind of questions, you have a right to insist on waiting to answer them in the presence of a steward.
Once your union representative is allowed to participate, you are required to answer the questions truthfully.
These protections are known as your Weingarten rights--named after the 1975 case in which the court decided the rights exist.
The Weingarten ruling applies specifically to union members covered under the National Labor Relations Act. However, a similar right is often negotiated into collective bargaining agreements covering Railway Labor Act (RLA) employees and public sector employees. (To find out if they are covered, public sector employees and employees covered by the RLA should consult their local union.)
The Boss Doesn't Have To Offer
The boss is under no obligation to tell you about the right to have a steward present.
You have to know your right and ask to use it.
Once you've asked for the steward, any attempt by management to continue asking questions before a steward gets there is illegal. If supervisors pressure you by telling you that "you're only making things worse for yourself" by asking for a steward, that's against the law too.
What to Say if Management Asks Questions That Could Lead to Discipline
"If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I request that my union representative, officer, or steward be present at the meeting. Without representation, I choose not to answer any questions."
Better Safe Than Sorry
The steward can serve as a witness to prevent supervisors from giving a false account of the conversation. Many people find it hard to talk under pressure. The steward can help you explain things. If you're hot headed, the steward can help you keep cool.
Stewards have often dealt with similar situations before and can help you figure out what you should and shouldn't say. You do have to answer the questions, but stewards can help you figure out the best way to do so. They can also provide information to management after the questioning is over that can help explain your situation.
If you don't insist on having your steward present, you can't later challenge discipline taken against you on the grounds that you didn't have a steward with you.
Know the Limits
Just as it's important to know what your Weingarten rights are, it's also important to know the limits.
You're not entitled to have a steward present every time a supervisor wants to talk to you-- like about how to use a certain tool or what your assignments are for the day. But if the discussion begins to change into questioning that could lead to discipline, you have the right to ask for your steward before the conversation goes any further.
If you're called in to the supervisor's office for an investigation, you can't refuse to go without your steward. All you can do is to refuse to answer questions until the steward gets there and you've had a chance to talk things over.
What is a Grievance?
Too often, a shop steward does not know the answer to this basic question. A member comes to you with a problem. They spell out an incident, an event, or a problem and then tell you to file their grievance.
If you respond immediately, in the affirmative, better read further.
Shop stewards and local union officers are vested with the responsibility of enforcing the contract for everyone in the bargaining unit. That is a right we demand as a union when we organize workers. To enforce the contract, the union negotiates a grievance procedure which is the chief way, but not the only way, we can get justice for our members. According to one survey, some 91 percent of surveyed union contracts include a grievance procedure.
The first question we need to ask ourselves when a member comes to the steward with a problem is, "is this issue a grievance?"
Strategically, we are asking is there any way we can deal with the issue through the official grievance network?
The textbook definition of a grievance is a violation of the terms of the contract or interpretation or application of the contract.
That's a pretty narrow definition of a grievance and one with which most union representatives might feel uncomfortable. But, as we all know, textbooks are not the final word on anything. So let's develop this definition a bit further.
A grievance is more than likely a violation of an employee's rights on the job, a right that is usually, but not always defined by the contract. In seeing a grievance in this way, we can understand better that the best place to look for a way to defend the member is in the language of the contract.
If you have any doubts as to the contract's importance on this fundamental issue, think about how your employer tries to chip away at the contract-- not just at contract negotiations, but every day. The employer knows that if all else fails, it is the contract that protects our members.
So for all practical purposes, every union officer must go back to the contract first when a member comes in with a complaint or a problem. The contract provides us with the strongest ammunition in resolving the issue for our member.
That is why it is so critical to know your agreement and use it as creatively as possible to write grievances. Many local officers have surprised themselves by grieving issues on language in the agreement which is close enough to the problem to get a positive response from management.
Is the contract the only means to resolve member's grievances? Of course not. But it is probably the strongest leg you have to stand on.
A grievance may exist if the company or employer violates the law. In almost every case, contract language or employer practices cannot violate the law.
Also, there is the issue of past practice. Most new shop stewards rely on the concept of past practice far too often. Past practice is roughly defined as a practice that has been repeated over a period of time. It's not something that has happened once or twice or that as been in place for a week. It is a practice which has been going on for enough time and so frequently that it appears to a reasonable person that both sides have agreed informally to conduct their business in this manner. The contract must also be silent on the practice. (See "Can Employers Change the Rules in the Middle of the Game?")
The best advice is that stewards should not take it upon themselves to grieve on the basis of an employer violating past practice. Discuss the issue with other union officers. There may be language in the agreement to the contrary. Or the union may lose too much by challenging the change in practice.
Lastly, there are many grievances that fall into a large category which we say are discipline-related. The union can challenge certain rules or their application. We may argue that a member is being disciplined without "just cause" or he or she is suffering from disparate treatment. The two expressions are simply an arbitrator's or lawyer's way of saying the member is being disciplined unfairly.
So the best advice that can be offered in handling a member's problem is to check the contract first. If there is any reasonable way of dealing with the issue as a contract violation, you ought to use it.
You and your local union are only limited by the contract, the skills of the grievance representatives, and the power of the local union.
