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Vol 4, Issue 8

April 3, 2008

By President Joe DiNicola

    Every day, wherever SEIU Local 503, OPEU workers make Oregon work, you are not alone. Every union represented worker has powerful protection on the job - your Weingarten rights. There's only one requirement. You have to know what to say to get the help of a steward.

     In this issue of President Joe's Journal, Adult Foster Care providers are ready to make history again as bargaining moves forward on a first-ever contract, members everywhere stand up and assert their right to representation and stewards and members can take a quiz on how to use your Weingarten rights.

     In this issue: Adult Foster Care Makes History You Have a Right to Representation  Q&A: How to Assert Your Weingarten Rights

 Adult Foster Care Makes History
    SEIU Local 503, OPEU recently won representation rights for 3500 Adult Foster Care (AFC) providers in the State of Oregon. AFC providers work hard to maintain a safe and stable environment for frail or disabled clients who are unable to live in their own homes. Members provide quality care and advocate for the needs of seniors and people with disabilities. AFC offers exceptional care 24 hours a day, seven days a week at a lower cost than comparable care at a nursing home or assisted living facility.

    Last year, AFC providers overwhelmingly decided to join our union. Following certification by the Employment Relations Board, the Governor signed an executive order and Oregon became the first state in the nation to grant collective bargaining rights to AFC. But as every member knows, obtaining bargaining rights is only the beginning. In January, 2008, AFC members started negotiations for a first-ever contract.

    In a recent KCBY TV interview in Coos Bay, bargaining team member and Adult Foster Care home owner Steve Hebert said, "The foster homes are working on less than minimum wage. They're working 24 hours a day, seven days a week. Most people who run the homes don't have the ability to hire additional help or even get health care for their families."

    AFC members wanted to join SEIU Local 503, OPEU to give workers a voice. Without a union, they recognized that the future of Adult Foster Care in our state was at risk. As represented care providers, members look forward to a contract with fair pay and benefits as well as the ability to maintain high standards of patient care.

    Contact any local officer, steward or organizer to find out how you can stand up and support AFC members. We will all make history when Oregon Adult Foster Care providers win the fight for dignity and respect in the first-ever AFC contract in the nation.

You Have a Right to Representation
    It's vital that every union worker be aware that management does not have a right to intimidate employees. In 1975, the U.S Supreme Court ruled (NLRB v. Weingarten, Inc.) that every represented employee has a right to have union representation during any investigatory interview. These rights protect workers and are now commonly known as the "Weingarten rights."

    Workers can only exercise Weingarten rights during an investigatory interview. This is critical because in closed-door meetings with supervisors who may be trained in interrogation techniques, attempts may be made by management to coerce workers into admissions of wrongdoing. Supervisors may question workers to obtain information or ask them to defend their conduct. Any information gathered using these techniques can then be used as a basis for discipline.

    If a worker has a reasonable belief that discipline or other adverse consequences may result from what he or she says when meeting with management, the worker has the right to request union representation. Unlike "Miranda" rights given by the police, there is no requirement for employers to inform workers of their Weingarten rights. Instead, it is up to each worker to assert your rights and request union representation.

    Sometimes, an employer may try to limit a steward's role to that of a silent witness or "potted plant." They may say the union representative cannot speak and can only observe the discussion during an investigatory interview. However, the United States Supreme Court has clearly ruled that a union representative has a right to assist and counsel workers during such interviews.

    The representative can speak privately with the worker before the interview. During questioning, the representative can interrupt to clarify a question and may object to tactics designed to confuse or intimidate an accused worker. The representative can't tell the employee what to say during the interview, but can give advice on how to answer questions. The union representative can always provide additional information to support the employee after the interview is concluded.

    If you or any of your co-workers believe that an interview with any supervisor or manager MAY result in discipline, you have an absolute right to have a union steward or other union representative present. Remember, if you don't speak up and exercise your Weingarten rights, every member runs the risk of losing them.

Q & A: How to Assert Your Weingarten Rights*

Q. If a steward sees a worker being interviewed in a supervisor's office, can the steward 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 the steward's 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 foreman and asked for his steward. In response, the foreman said, "You can request your steward, but if you do, I will have to bring in the plant manager, and you know how temperamental 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 foreman 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 foreman to go to the personnel office for a "talk" about her attitude. She asked to bring a union representative but the foreman 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.

Q. If management asks a worker to submit to a urine test for drugs, 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. 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, "Doreen, yesterday you refused a direct order to work overtime. Therefore, we're giving you a one-day suspension for insubordination." Did the company violate Weingarten?
A. No. Weingarten rights do not apply to meetings where employers simply announce 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 does not have to delay an investigation if other union representatives are available to assist the employee at the interview.

Q. If a steward is called in by his/her foreman 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. If the company 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.

*This information is reprinted from the website of: The Marshall Engineers and Scientists Association. MESA is the collective bargaining representative of engineers and scientists employed by the NASA Space Flight Center (MSFC).
Please pass this advice along to every co-worker and keep it in mind if confronted with an investigation. Every worker has the right to say: "If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I respectfully request that my union representative, officer or steward be present at the meeting. Without representation, I choose not to answer any questions." Call 503-581-1505, ext. 222 and ask for a business card sized "Weingarten rights" for your wallet. Don't go to a supervisor's office without it.