Winning at Weingarten

Sixty years ago while living in my native state of Texas, my brother was a bag boy at our neighborhood grocery store – Weingarten’s. Long after my dad was transferred to New York, an employee of J. Weingarten, Inc. was grilled by a company investigator for allegedly shortchanging her employer. She repeatedly asked to have a union representative present; however, those requests were denied.

The evidence against her was unconvincing, however, she protested she had only taken her free lunches, a benefit allowed at many Weingarten stores but not hers. She was fired… and the rest is history.

The “Weingarten Right” stems from the Supreme Court’s decision in her case, which was issued in 1975 – 3 years after that fateful interview and request for representation. By then, the National Labor Relations Board had found in the union’s favor, the Fifth Circuit Court of Appeals had reversed the Board, and the Supreme Court reversed the appeals court ruling in a split decision. Labor law was forever changed.

The government isn’t a business

At the time, NLRB v. J. Weingarten, Inc. did not apply to Uncle Sam’s employees and unions; however, the passage of the Civil Service Reform Act of 1978, 5 U.S. Code § 7114(a)(2)(B) created the same right for unions in the Federal government. It reads:

(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at—

(B) any examination of an employee in the unit by a representative of the agency in connection with an investigation if—

(i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and

(ii) the employee requests representation.

Technically, these meetings are not Weingarten in the government, yet many in the labor-management community continue to refer to them by this name. Other terms for these meetings are “investigative”, “preliminary”, and “pre-action”. They can be stressful, and contentious for the participants. Supervisors and managers may appear to be suspicious and aggressive toward an innocent-until-proven-guilty employee, while the employee might be perceived as defensive and/or evasive in their responses to questions.

The players

As I see it, roles in these meetings are played by: 1) line management; 2) bargaining unit (covered by a union agreement) employees; 3) union representatives; and 4) human resource (commonly labor relations) specialists. Each can make these encounters more efficient, less stressful, and more productive by adjusting their perspectives.

Preliminary investigations are commonly conducted by front-line supervisors. Others (security personnel, a designated and trained management official, human resource specialist, etc.) can easily substitute for the supervisor but that’s not the common practice in most agencies. When I teach supervisors about Weingarten meetings I want to be clear these are uncomfortable confrontations the likes of which are left to trained law enforcement officials in our communities.

The supervisor

Some labor agreements specify that the employee be told in advance about the meeting and advised of their right to union representation. Others don’t. I think that if such a meeting is scheduled or pre-arranged, such notice is just practical. Beginning the meeting, only to learn that the employee wants a representative results in an adjournment or postponement until arrangements can be made. It would be more efficient and up-front to ask the employee about the union in advance, if possible.

I also suggest the supervisor not prepare a list of questions going into the meeting. It is far better to be curious. Be open and honest about the behavior in question, explain how you learned of it, and ask what lawyers call “open questions”. “What happened?” is the most basic example of an open approach. Just ask questions – no commentary and no lectures, please!

Have someone assist you as a note-taker. It’s hard enough to think of an appropriate question, listen to the answer, and consider if there are any follow-up questions warranted. To add note-taking is unnecessary and distracting. Have a fellow supervisor or administrative person do this job. Ensure the employee knows at the start that the notes will be available to them and that the note-taker agrees to keep the meeting confidential. Keep your cards face-up.

Lastly, don’t be intimidated by a union representative’s presence. They may not disrupt the meeting nor advise the employee to remain silent. They can only answer for the employee if you allow it. While they are certainly “on the employee’s side”, that doesn’t mean they are your adversary. Triangulating such meetings may prove advantageous.

The employee

My first advice to any employee who is being questioned and fearing discipline is tell the truth! This is not the time to be cagey or clever. As with your teachers and parent(s), it’s easier just to ‘fess up if you’ve done something wrong. Of course, if you haven’t then the truth is your ally. The investigative interview is not only a fact-finding session but also an assessment of your character and willingness to play by the rules.

In advising honesty, I’m not suggesting you volunteer information not requested. As your union representative will likely tell you, repeat your supervisor’s question to yourself and only answer what you were asked. If they want more, they’ll follow up. Your job is to be responsive to what’s asked. If it’s a “Yes” or “No” question, your answer should be monosyllabic.

There is no right to remain silent in the administrative setting. You can be disciplined separately for failure to cooperate in an investigative meeting. I suggest you not run the risk. If, however, a question seems inappropriate (such as matters concerning your life away from work, your politics, your health, etc.), you should request the union’s assistance or, in the absence of a representative, ask the supervisor to reconsider the question since it doesn’t sound job-related to you. If it’s asked again, I suggest you answer it.

That brings me to my last piece of advice to employees in a Weingarten meeting: use your union representative to your advantage. What’s the harm of having one there?

Feel free to ask them for help in framing difficult answers. For instance, you may be asked questions that would incriminate a coworker. Your representative has probably attended more than one Weingarten meeting by now and might prove helpful to have sitting to your side.

The union rep

This meeting isn’t about you. Keep the employee’s interest paramount and check your oppositional self at the door. The union has two functions at the workplace – to bargain and to represent.

This is the latter, and your client may be in trouble. Focus on the employee’s story and emotional situation. If they have legitimate anxiety, let them know you can work with the supervisor for the best possible outcome. Now, however, is the time for them to be honest and forthcoming.

Don’t use a preliminary investigation as an opportunity to impress the employee. Finding union support is important, but this isn’t the setting for a performance or pitch. If they are a dues-paying member or not, you want them to feel your genuine concern for their security and well-being. By repeating and/or clarifying the supervisor’s questions you can slow the pace of the inquiry and allow the employee time to think. …and, of course, your own sincerity can prove a model for theirs.

Lastly, recognize that this employee and this supervisor have a relationship that will likely endure after the Weingarten meeting ends. You are the third leg of the stool while the supervisor and employee occupy an uncomfortable space. Of course, you’re on the employee’s side. Their primary interests, however, may be more grounded in a positive future than what they did in the past. Try to keep that in mind.

Human resources

A Weingarten meeting isn’t a tactical exercise. It’s an “examination” according to law – just relevant questions and answers. Help the supervisor understand that they are not performing or being graded. If they forget to ask something, they can always reconvene to add that question and the employee’s answer to the record.

If the employee has done something that justifies disciplinary action, that doesn’t mean that disciplinary action is the best option for line management. Too often, HR specialists tell managers what to do. Accept the role of technical expert but leave reasoned decision-making to leadership. It is they who will have to live with the choices made. We in HR are occupants of the “ivory tower”.

Formulas consisting of Douglas factors, past practices, progressivity, and evidentiary advantage are of little use to supervisors grappling with errant employees. People are complicated and positive workplace relationships are paramount to your agency’s success. Whether you can win this case or not may be immaterial to the future of the employee, the supervisor and their team. While investigative meetings focus on the past, keep an eye on the future and your value to them will increase.

Finally, if you are a management “team player” get over it. If you’ve grown skeptical of leaders and their competence, get over that too. As for the employee, we’ve all lied, cheated and stolen somewhere in our pasts. Keep your perspective and neutrality intact. You are a subject matter expert who may prove a wise counselor as well.

A harmonious quartet

In my seminars we simulate Weingarten meetings and quickly learn they are both unpredictable and manageable. After a practice exercise is completed, the focus pivots toward resolution. Blame is focused on what’s passed and done. Resolution is concerned with putting the past behind us.

As I pointed out in an earlier article disciplinary actions have hidden costs. The time and paperwork, the hard feelings, and the possibility of subsequent grievances or EEO complaints should be factored into the equation. Of course, if the employee’s offense warrants removal, all bets are off – even though administrative litigation is likely. Otherwise, alternatives may prove more effective than memos and unpaid suspensions.

If you’re the employee and you know you did something wrong, consider an apology for your actions. Showing responsibility and remorse can go a long way toward putting the issue(s) to rest. So can written promises regarding future behavior.

If you’re the union representative, the objective should be an absence of a disciplinary record and a positive workplace relationship up ahead. This meeting shouldn’t be about union-management relations in your workplace.

If you’re the supervisor, gather the facts and then stay focused on the objective – responsible behavior in the future. Legalistic memos may not represent what’s most important to you.

And finally, if you’re an HR specialist, consider the value of durable agreements in lieu of reprimands and suspensions, as the latter may prove costly (if litigated) and the former may help the parties move ahead, focused on the mission… which is what matters most.

© 2016 Robbie Kunreuther. All rights reserved. This article may not be reproduced without express written consent from Robbie Kunreuther.

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About the Author

Robbie Kunreuther is the Director of Government Personnel Services (GPS). GPS provides 1 to 3-day seminars to Federal agencies in four subject areas: Dealing with performance and conduct issues; Developing sensible performance appraisal criteria; Fostering cooperative labor-management relations; and Applying mediation skills in the workplace. Over the years, Robbie has trained thousands of Federal supervisors, managers, HR specialists, and union officials. For more information about him and GPS, go to trainlngfeds.com.

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