Employers have the option to hire permanent replacements in response to a strike. Often employers do not understand that the replacements retain all the rights of the employees whom they replace.
Organized employees have the right to request a union representative be present in an investigatory meeting that may result in disciplinary action or where the employee reasonably suspects disciplinary action may result. Named after a case, that is known as the Weingarten right.
The Weingarten right does not apply to run-of-the-mill conversations, such as training or instruction on work techniques. It also does not apply where the employee is being informed of the discipline, unless further investigation or interrogation may take place. An employer does not have the responsibility to ask if the employee would like a representative. Employees exercising the right must be given reasonable time to secure a union representative. Employers that deny the employee’s request, or discipline an employee for not participating in an investigation after denying their Weingarten right, may violate the National Labor Relations Act.
The Seventh Circuit Court of Appeals stated in International Union of Operating Engineers Local 150 v. NLRB that a permanent replacement for striking employees can exercise their Weingarten rights. Kelly, a replacement worker, was brought in for an interview and requested the presence of a specific union leadership employee, Calkins, who was 25 minutes away. Rather than wait, the employer offered a non-leadership employee, who also requested the presence of Calkins. The employer continued the interview without Calkins and disciplined Kelly. The Court held that regardless of Kelly’s status as a permanent replacement, he maintained his Weingarten right, which was denied.
Tensions are always higher during a strike. Consult with your labor attorney to discuss what you can and cannot do during a strike. Even more, employers should understand their responsibilities and the rights of union employees, especially in regard to investigation and discipline. Training for managers and supervisors to ensure employee rights are protected will save employers time and money.