Approximately 70% of the employees in the United States are “at-will” employees; they can be disciplined, fired, or laid off without any reason or without any recourse.
On the other hand, employees represented by labor unions have rights and protections provided by federal and state laws, as well as by their union contracts.
The most important law for U.S. workers is the National Labor Relations Act (NLRA). Passed in 1935, during a period of great labor unrest, the NLRA provides most U.S. workers in the private (non-governmental) sector with the right to join and establish a labor union, negotiate with their employer over the terms and conditions of employment, and take “concerted action”, including picketing and striking. (Most states have similar laws for state and local government employees.)
If an employer violates any worker rights under the NLRA, an employee and/or their Union can file an “Unfair Labor Practice” (ULP) charge with the National Labor Relations Board. If the charge is substantiated, the employer will have to correct their actions and provide compensation.
One of the most important rights union members have is not explicitly found in the NLRA, but resulted from a ruling by the U.S. Supreme Court that interpreted the NLRA. This is the so-called “Weingarten Rights” to union representation.
The U.S. Supreme Court ruled that the NLRA gives union workers the right to request union representation during investigatory interviews by supervisors, security personnel, and other managerial staff. Weingarten Rights help to ensure that, as an employee and union member, you are treated fairly and that you receive “due process” when management believes that you have violated a policy or rule.
An investigatory interview occurs if 1) management questions you to obtain information; 2) you have a reasonable belief that your answers could be used as a basis for discipline or other adverse action.
You must ask for union representation either at the beginning of or during the interview. Management does not have to remind you of this right. (However, some HPAE contracts require management to provide you notice of your Weingarten Rights.)
If your request is refused and management continues asking questions, you may refuse to answer. Your employer is guilty of an Unfair Labor Practice if they force or try to force you to answer their questions without union representation. Further, this would be a violation of the union contract.
‘Just Cause’ for Disciplines
In addition to Weingarten Rights, another crucial protection for union members is the requirement – found in all union contracts – that an employer can only discipline employees for just cause. An employer must have adequate reasons for disciplining employees; they cannot be arbitrary, unfair, or capricious in issuing discipline. But what does “just cause” mean? How do we know when management is acting according to this standard?
The following are the basic elements of just cause. Virtually all labor arbitrators recognize these elements and use them in their determination of grievance arbitrations regarding disciplines.
1. Reasonable Rule – Was the rule or order reasonably related to the a) orderly, efficient, and safe operation of the department or b) standards of job performance that might be properly expected of employees?
2. Notice – Did management give the employee adequate notice that the particular conduct would have disciplinary consequences? (Certain kinds of conduct, such as theft, are so serious that any employee is expected to know that such conduct will be punished on the first offense.)
3. Sufficient Investigation – Before administering discipline, did management investigate (by questioning the employee and others who have relevant information)?
4. Fair Investigation – Was the investigation fair and objective? Did the employee have the right to Union representation during the investigation?
5. Proof – Did the investigation produce substantial evidence or proof that the employee actually violated a rule or order?
6. Equal Treatment – Has management applied this rule or order even-handedly? Is the employee being treated more harshly than others?
7. Appropriate Discipline – Was the discipline proportionate to the seriousness of the offense and the work record/seniority of the employee? Was progressive discipline followed?
Each of these elements of just cause ensures that a discipline is given only to those who deserve it and that it “fits the crime”. If management violates just one of these elements, their discipline may be inappropriate.