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Weingarten, back in the day before food courts, was a chain of stores that had lunch counters at some stores and take out only at some stores. Leura Collins was an employee at a takeout store and was represented by Retail Clerks Union, Local 455. The company sent in an undercover security person to look for theft at the store. Finding none, Leura was interviewed by the store manager and the security person during which she asked for, and was refused union representation.

The union, as a result of the interrogation, filed an Unfair Labor Practice complaint with the NLRB. After a hearing the NLRB found that the company, Weingarten, had violated the National Labor Relations Act and the U. S. Supreme Court agreed.

In Michigan the right to have a union representative with you during an investigation is found in the Public Employment Relations Act (PERA). Section 9 of the act says that, “It shall be lawful for public employees to organize together or to form, join or assist in labor organizations, to engage in lawful concerted activities for the purpose of … other mutual aid and protection…”

If an employee reasonably believes that an interview will result in discipline, the employee has the right to have a union representative with him/her in the interview. This is true even if the employer has no intention of imposing discipline. This right attaches even if the person doing the interview is not the employer, such as the Michigan State Police, the prosecutor, the FBI, etc.

If the employer assures the employee that no discipline will result then no union representation is required. Of course if the employer should then discipline the employee an arbitrator should reverse the discipline and restore the employee to his/her position prior to the discipline.

In order to assert your rights under Weingarten, you must ask for a union representative.  It is not up to the employer to offer you the opportunity to get one. If Weingarten rights apply the employer has three choices. First to allow the union representative to sit in on the interview.  Second to dispense with or discontinue the interview. Third, deny the request and give the employee the choice to either continue the interview or to refuse and the employee discontinues the interview. This of course does not allow the employee to put in his/her 2 cents worth.

The role of the union representative varies according the practice of the employer from being a “fly on the wall” to being able to object to questions and questioning the employee. At the very least, the union representative has the right to counsel with the employee before the interview, to find out what the charges are, offer mitigating circumstances and provide investigative leads. Also to question the employee at the end of the interview.

The bottom line is to always, always, always ask for a union representative if there is any chance that discipline may result. Don’t take no for an answer. Protect yourself.





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