EDUCATORS EMPLOYMENT RIGHTS - LYBARGER ADMONISHMENT

EDUCATORS EMPLOYMENT RIGHTS

Our contract states that employees have “the right to request to have a union representative present during an investigative interview” when the employee “reasonably believes that . . . the interview is likely to result in disciplinary action.” However, supervisors are often not aware of the contract’s rules, and will call you in for an investigatory meeting, without telling you the conversation may lead to discipline and letting you know about your right to representation. When called into a meeting that turns into something that is disciplinary, ask if the discussion could lead to discipline? If so, it is your right to have a union steward/representative present. Request to continue the meeting another time after you have had an opportunity to contact your UNION LOCAL representative. If the supervisor insists on continuing, don’t say anything, but instead listen and take notes. Try your best to stay calm, don’t show how upset you may be and don’t answer any questions or make any comments. Just politely respond, “I’d be happy to answer your questions as soon as my union representative is present.”*

Employees’ Right to Union Representation

The right of employees to have union representation at investigatory interviews was announced by the U. S. Supreme Court in a 1975 case (NLRB vs. Weingarten, Inc. 420 U.S. 251). 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 that 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. Employees do not have the right to union representation if the meeting is only to tell them about discipline that has already been decided or to give other direction.

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:

•             They can stop questioning until the representative arrives;

•             They can call off the interview; or

•             They 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 Union representative can interrupt to clarify a question or to object to confusing or intimidating tactics. While the interview is in progress the representative cannot tell the employee what to say but he may advise them on how to answer a question. If necessary, a representative may ask for a caucus to meet with the employee privately to provide further advice. At the end of the interview the union representative can add information to support the employee’s case. One of the most vital functions of a Union steward is to prevent management from intimidating employees. Nowhere is this more important than in closed-door meetings when supervisors are often trained in interrogation techniques, attempt to coerce employees into confession to wrongdoing.

The presence of a steward can help in many ways. For example:

•   The steward can help a fearful or inarticulate employee explain what happened.

• The steward can raise extenuating factors.

• The steward can advise an employee against blindly denying everything, thereby giving the appearance of dishonesty and guilt.

• The steward can help prevent an employee from making fatal admissions.

• The steward can stop an employee from losing his or her temper, and perhaps getting fired for insubordination.

• The steward can serve as a witness to prevent supervisors from giving a false account of the conversation.

• When the steward arrives, the supervisor must inform the steward of the subject matter of the interview, i.e., the type of misconduct for which discipline is being considered (theft, lateness, drugs, etc.).

• The steward must be allowed to take the worker aside for a private pre-interview conference before questioning begins.

• The steward must be allowed to speak during the interview. However, the steward does not have the right to bargain over the purpose of the interview.

• The steward can request that the supervisor clarify a question so that the worker can understand what is being asked.

• After a question is asked, the steward can give advice on how to answer.

• When the questioning ends, the steward can provide additional information to the supervisor.

• It must be emphasized that if the Weingarten rules are complied with, stewards have no right to tell workers not to answer questions, or to give false answers. Workers can be disciplined if they refuse to answer questions.

What is an investigatory interview?

Employees have Weingarten rights only during investigatory interviews. An investigatory interview occurs when a supervisor questions an employee to obtain information that 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 a right to request union representation.

Frequently Asked Steward Questions

Q: If I see a worker being interviewed in a supervisor’s office, can I demand to attend the meeting?

A: Yes. A steward has a protected right to demand admission to a Weingarten interview. However, once the request is made, the employee being interviewed must indicate a desire for your presence. If the employee states that he or she wishes to be interviewed alone. The steward must leave.

Q: An employee was summoned to an interview with his supervisor and asked for his steward. In response, the supervisor said, “You can request your steward, but if you do, I will have to bring in the division manager, and you know how temper mental she is. If we can keep it at the level we’re at, things will be a lot better for you.” Violation?

A: Yes. The supervisor is threatening greater discipline to coerce the employee into abandoning his Weingarten rights. This is an unfair labor practice.

Q: An employee was ordered by her supervisor to go to the personnel office for a “talk” about her attitude. She asked to bring a union representative but the supervisor said she would have to make her request when she got to the office. Can she refuse to go to the office?

A: No. Weingarten rights do not begin until the actual interview begins. The employee must go to the office and repeat her request to the official conducting the interview. Only, if a supervisor makes clear in advance to an employee that he or she intends to conduct an investigatory interview without union representation, does an employee have a right to refuse to go to a meeting.

Q: Do Weingarten rights apply to a polygraph examination?

A: Yes. An employee has a right to union representation during the pre-examination interview and the examination itself. If you are asked to take a polygraph examination you should immediately contact a union representative.

Q: If management asks a worker to submit to a urine test for dregs, does Weingarten apply?

A: Yes and no. Since a urine test is not questioning, an employee does not have right to the presence of a steward during the actual test. Management must, however, allow the employee to consult with a union representative to decide whether or not to take the test.

Q: Can management order a worker to open a locker without a steward being present?

A: Yes. Locker searches, car searches, or handbag searches are not interviews. Employees do not have a right to insist on the presence of a steward.

Q: An employee was given a written warning about poor attendance and told he must participate in absence-counseling sessions with a member of the personnel department. Does the worker have the right to demand the presence of a union steward at the counseling sessions?

A: This depends on whether the employee has a reasonable fear that the counseling sessions could result in further discipline. If notes from the session are kept in the employee’s permanent record, or if other employees have been disciplined after counseling sessions, the employee’s fears would be reasonable and would entitle him to bring a steward. But if the employer gives firm assurances that the meetings will not be used for further discipline and promises that the conversations will remain confidential, Weingarten probably would not apply. The employee should verify that the discussions with the counselor are considered to be “confidential communications.”

Q: If a worker is given a warning slip for misconduct and is asked to sign the slip to acknowledge receipt, must the employer permit her to consult her steward before signing?

A: No. Since the employer is not questioning the worker, Weingarten rights do no apply.

Q: Can a worker insist on the presence of a lawyer before answering questions at an investigatory interview?

A: No. Weingarten rights apply only to the presence of union representatives.

Q: Over the weekend, a foreman called a worker at home to ask questions about missing tools. Did the worker have to answer the questions?

A: No. Weingarten rights apply to telephone interviews. A worker who fears discipline can refuse to answer questions until he or she has a chance to consult with their steward.

Q: A worker was called into the manager’s office. She asked for her steward, but was refused. The manager said, “Yesterday you refused a direct order to work overtime. Therefore, we’re giving you a one-day suspension for insubordination.” Did the manager violate Weingarten?

A: No. Weingarten rights do not apply to meetings employers simply announcing discipline. However, if the employer starts asking questions or tries to make the employee admit guilt, Weingarten would apply and the employee can insist on the presence of a steward or other union representative before answering.

Q: If a worker’s steward is out sick, can the worker insist that the interview be delayed until the steward is available?

A: No. Management is not required to delay an investigation if other union representatives are available to assist the employee at the interview, however if the stewards at your worksite have a good working relationship with supervisors, the best thing to do is come to a mutual agreement on the interview date and time.

Q: If a steward is called in by his/her supervisor to discuss his/her work record, does he/she have the right to a union representative?

A: Yes. Union stewards have Weingarten rights. If you fear discipline or other adverse actions, you have the right to the presence of a union representative.

Q: Suppose a worker’s request for a steward is denied. If the supervisor continues to ask questions, can the worker walk out of the office to get a steward?

A: It depends. Some decisions by the NLRB suggest that when the employer denies the employee’s request, the employee can refuse to participate in the interview, even to the point of walking out to seek a union representative. However, this is not recommended. The best thing to do is not say anything, but instead listen and take notes. Don’t answer any questions or make any comments, instead just politely respond, “I’d be happy to answer your questions as soon as my union representative is present.”*

* Per Gina Donnelly, Assistant Director of OER (annual steward/city training 10/16/09)

Q: If the department calls a meeting to lecture workers about job performance, do the employees have a right to demand the presence of a union representative before attending the meeting?

A: No. Holding a meeting on work time that does not involve interrogation is not a Weingarten meeting. There is no right to a steward unless the employer begins asking questions of employees in a manner that creates a reasonable fear of discipline.

Q: When, exactly, do Weingarten rights apply? Do managers have to allow union representation every time they talk to employees they supervise?

A: No, they do not have to permit union representation every time they talk to a subordinate employee. Weingarten rights are triggered when management will be interviewing an employee and he or she has a reasonable belief that the interview will result in disciplinary action. If a manager is merely announcing or reviewing a disciplinary decision that has already been made, Weingarten does not apply. Weingarten rights are also inapplicable to meetings that are part of a performance evaluation process, and to casual “shop floor” conversations. In other words, employees cannot insist on union representation every time a manager wants to talk to them.

Q: What if the employee being interviewed is merely a “witness,” and not the “subject” of the investigation?

A: If the employee to be interviewed is merely a witness, Weingarten rights would not be triggered. Sometimes, however, the focus of an investigation may change during the process at which point your status as a “witness” could be blurred into that of the “subject.” If you find that the character of your interview changes during the course of the interview, you need to invoke your Weingarten rights and ask if further questions may possibly lead to discipline. If the questioning may lead to discipline, then you need to request union representation.

Q: What are the consequences of failing to afford an employee his or her Weingarten rights?

A: The consequences of a Weingarten violation can be significant. The union may pursue an unfair labor practice charge with the Public Employment Relations Board (PERB). In addition, it is quite possible that any discipline of the employee whose Weingarten rights were violated could be overturned. In the appeal process the issue of whether the employee was afforded all procedural rights when evaluating whether there was just cause for discipline will often be considered.

EDUCATORS EMPLOYMENT RIGHTS  What is a Lybarger admonishment? A Lybarger admonishment derives its name from Lybarger v. City of Los Angeles 40 Cal. 3d 822 (1985). In interpreting Government Code Section 3303(e) and (h) the California Supreme Court determined that whenever a supervisor/manager interrogates an employee and (a) it appears that the employee may be charged with a criminal offense as a result of his misconduct, or (b) the worker refuses to answer questions on the ground that the answers may be criminally self-incriminating, the questioning must be preceded by a “Lybarger admonishment.” The employee must also be told the following: • Among other things, that although the employee has the right to remain silent and not incriminate himself o (1) his silence could be deemed insubordination, leading to administrative discipline, and o (2) any statement made under the compulsion of the threat of such discipline (i.e., incriminating statements) could not be used against him in any subsequent criminal proceeding. Remaining silent: • If the employee continues to stand on his Fifth Amendment right to remain silent in the face of the above admonition, he risks disciplinary action for his refusal to answer. If the worker agrees to answer questions after the above admonition, management can use his answers for administrative purposes – not criminal prosecution. Remember, before any meeting with a supervisor where the employee reasonably believes discipline may result, a union representative should be consulted, and the right to have one present is guaranteed under the Weingarten rule. (See Weingarten Rights for more information on union representation rights.) More about the Lybarger court case: Unlike in the private sector, a public employer questioning employees about a criminal matter implicates their rights to remain silent and not incriminate themselves. In Spielbauer v. County of Santa Clara, the Supreme Court reiterated that this right to be silent is not absolute and is subject to the public employer’s need to promptly investigate allegations of misconduct. In short, the Court held that a public employee can be disciplined for refusal to answer questions if the employer states that the answers will not be used for purpose of a criminal action against the employee.1 In practice, this grant of “use-immunity” is not air-tight and great caution should be applied in any situation where the interviewed employee could face criminal prosecution. While prosecutors would be prohibited from using the actual interview or related notes against the employee, the interview can be used to impeach the employee, if the employee testifies at trial and that testimony conflicts with his/her testimony in the employment interview. Moreover, the police can use the interview to locate independent evidence to support the employee’s prosecution. Though this evidence is potentially subject to exclusion at trial if obtained illegally, it might be difficult to prove the original source of the evidence. For these reasons, depending on the conduct at issue, even if the employer says “your answers won’t be used for purposes of a criminal action against you” a public sector employee will need to decide whether it is better to refuse to answer and face discipline, even dismissal, or to cooperate and risk criminal consequences. 1 The Supreme Court reversed a lower court ruling that the public employer may compel employee answers that may incriminate the employee only after obtaining full prosecutorial immunity for the employee. See also, Garrity Rights.