In addition to the protections in your Collective Bargaining Agreement (CBA), union representation guarantees workers additional rights under the National Labor Relations Board (NLRB) and the Public Employees Collective Bargaining Act (PECBA).
Weingarten RightsIn 1975, the United States Supreme Court ruled that employees covered by a Collective Bargaining Agreement (CBA) have a right to be represented during investigatory interviews, called Weingarten rights. Weingarten rights apply any time a supervisor asks an employee to defend their conduct, or questions an employee to obtain information which could be used as a basis for discipline. If the employee has a reasonable belief that discipline or other adverse consequences may result from what they say, they can request union representation.
Once an employee has requested their representative, it is illegal for management to attempt to continue asking questions. The manager has three options:
- Stop questioning until the representative arrives
- Call off the interview
- Tell the employee the interview will be called off unless they give up their right to union representation (an option the employee should always refuse!)
The union representative must be allowed to:
- Be informed of the subject of the investigatory interview
- Speak privately with the employee before the meeting
- Assist and council the employee during the interview
During questioning, the representative can interrupt to clarify a question or object to confusing or intimidating tactics. The representative cannot tell the employee what to say, but they may advise the employee on how to answer a question. At the end of the interview, the representative may add information to support the employee’s case.
In 1966, the United States Supreme Court ruled that, if a public employee is ordered to answer questions about a potential criminal matter by their employer under the threat of discipline, the employee is not voluntarily waiving their rights against self-incrimination, but are making statements under duress. Police cannot use statements made under these circumstances to further their investigation.
The burden is on the employee to assert their Garrity rights, and they should do so whenever they believe they are being investigated for events that might involve potentially criminal conduct. Once an employee has asserted their Garrity rights, management must
- Give a direct order to answer the question
- Make the question specific, and directly and narrowly related to the employee’s duty or fitness for duty
- Advise the employee that answers cannot be used against them in a criminal proceeding
- Allow an union representative if the employee also asserts their Weingarten Rights
In May 2002, OSEA established a policy regarding the methods and procedures that shall be used in dealing with instances where members are being investigated for conduct that could be construed as a criminal matter. A Garrity rights form has been created and should be used in cases that present possible criminal violations. Your field representative will have these forms and know their use.
Should you be in a situation where Garrity rights are needed, understand that the district will most likely have never heard of Garrity rights and their meaning. Don’t be surprised or angry with this, it is just not that common. A simple explanation that you understand the district has a right to investigate the matter, but that you also have a Fifth Amendment right against self-incrimination, should clear the way for meaningful dialogue. These 2 rights can co-exist with the proper use of Garrity Rights. In many cases, you may not even be aware of whatever crime or problem they are talking about and, even if you are aware of it, you also know you did not do it. Don’t fall into the trap of talking too much just to try to make the district interviewer happy. Be cautious, exercise your rights and seek legal advice. Your employer may tell you things like: If you confess or admit to the crime or tell them who did the crime, they won’t prosecute you. However, your employer does not have the final authority to determine who will be prosecuted; it is up to the district attorney to make that determination. Please be cautious in your statements during interviews and help keep your fellow workers advised of their rights.
OSEA provides legal services for employment-related matters to all workers we represent. Every person covered by an OSEA collective bargaining agreement (CBA) is entitled to this representation.
The first layer of protection is your OSEA field representative, a professional who has been trained in labor law. In the event further legal action is necessary, OSEA’s general counsel will litigate the matter before the Oregon Employment Relations Board (ERB), the National Labor Relations Board (NLRB) or other court or administrative agency.