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WHAT ARE MY WEINGARTEN RIGHTS?

I’m disturbed to find that many carriers do not know their “Weingarten Rights”. If you do know about this right, or even heard about it, sit down and read this carefully over and over again until you do understand it, forwards and backwards. It is so simple, yet many fail to exercise it, and to their own detriment, from discipline to removal.

“Federal labor law gives each employee; “the right to representation during any investigative interview which he or she has reason to believe may lead to discipline” (NLRB vs. J. Weingarten, US Supreme Court, 1975) The Weingarten Rule does not apply to other types of meetings.

The Weingarten rule only applies when the meeting is an investigative interview, when management is searching for facts and trying to determine the employee’s guilt or decide whether or not to impose discipline.

An employee’s has Weingarten reprensentation rights only where he/she reasonably believes that discipline could result from the investigative interview. Whether or not an employee’s belief is “reasonable” depends on the circumstances. Some cases are obvious, such as when a supv. asks an employee if they discarded deliverable mail. The steward CANNOT exercise Weingarten rights on the employee’s behalf. And unlike “Miranda Rights”, which involve criminal investigations, the employer is not required to inform the employee of the Weingarten right to representation.

Reread that last underlined sentence. Mgmt. will not inform you of your right to this representation. You must know about it and you MUST ask for representation! If you do not ask for a steward, you have given up your right to have representation present, until you assert it. No matter how smart you think you are, no matter how innocent you think you are, no matter how much you think you and the supervisor are buddies, an investigative interview is not to give you an “atta-boy”! You will not believe how many carriers dig deeper into the hole they created by not having a steward present to guide you through this process. What was a simple interview now has turned ugly because the carrier just “talked too much”, and buried himself deeper with each explanation to a simple question . Many questions are irrelevant, are credibility questions, or are questions just to get you to do their investigation for them.

The question always asked by a poor supervisor is “How long have you worked for the Postal Service?” This is a credibility question. They know how long you have worked at the PO. They hired you. They have the records, why would they need to ask this? What if you can’t remember exactly? What if you answered 12 yrs. instead of 13? Now they will want to say you lied in the investigative interview and bring in your credibility for all other questions. A sharp steward will object to the question. It is also a way of doing an investigation by the supervisor who happens to be too lazy to look up your records.

Before any investigative interview you have a right to a pre-interview consultation with a steward. Federal courts have extended this right to pre meeting consultations to cover interrogations by the Postal Inspection Service. (Step 4 M-01092, US Postal Service vs. NLRB, D.C Cir. 1992).

In a Weingarten interview, the employee has the right to a steward’s assistance, not just a silent presence. The employer would violate the employee’s Weingartren rights if it refused to allow the representative to speak or tried to restrict the steward to role of a passive observer. This means a steward should be an active participant in the interview and cannot be told to just sit there and shut up. They need to be involved protecting your rights!

 

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Although ELM section 666.6 requires all postal employees to cooperate with postal investigations, the carrier still has the right under Weingarten to have a steward present before answering questions in this situation. If you are denied a presence of a steward and you are questioned and have a fear that discipline may ensue from the questions, you should reply; “I wish to cooperate in your investigation but I cannot answer any question until I am advised by my steward.” You have now tried to cooperate and asserted a right to have representation by your steward. You have complied with 666.6 and asserted your Weingarten rights.

The only time you may NOT have a steward present is during a discussion. Art. 16.2 provides that “for minor offenses by an employee…discussions…shall be held in private between the employee and the supervisor. Such discussions are not discipline and are not grievable.” So an employee does not have Weingarten Representation rights during an official discussion. (C-03769 Arb. Aaron, HIT-1E-C 6521 Jan. 6, 1983)

During a discussion, and it should be that, a discussion, not an investigative interview, mgmt. should not be asking you probing questions about any incident, if they do, the discussion may now have turned into an investigative interview and you should ask for a steward and your belief that discipline may ensue is reason to answer the way I have stated above and you wish to have representation.

If the Postal Inspection Service is involved the first question you should ask is may this lead to criminal charges. If it may, you need to seek an attorney immediately and invoke your Miranda Rights until you seek counsel from an attorney. While a steward may help protect you under contractual issues, a criminal prosecution is out of jurisdiction and training of a steward and legal counsel should be called in immediately.

Remember, there is no such thing as a “friendly” investigative interview. They are looking for things to discipline you with. Do not give them added ammunition by talking to them without representation under your Weingarten Rights. Only you can protect your Weingarten Rights, as you are the only one who can invoke them!

BE INFORMED!…BE PROFESSIONAL!…BE UNION!

Denny Belden

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