Can I get a witness?: Case brings employee rights into spotlight

Last year in March the Wasilla police were called to the Wasilla Wal-Mart store to escort Ken Stanhope off the property on what Stanhope said was his last day at work after seven years with the company. Stanhope admits to trying to organize workers at the store under United Food and Commercial Workers International. Stanhope also said he was fired for asserting his so-called Weingarten rights -- the right of a worker to have another employee as a witness if called into a meeting with a supervisor should the employee suspect the meeting might result in disciplinary action.

The firing resulted in a National Labor Relations Board (NLRB) complaint against Wal-Mart. If the case isn't settled in six weeks, Wal-Mart will be defending itself before an administrative law judge in Anchorage on June 27.

Sound expensive? For an employer it could be. A Wal-Mart spokesperson in Bentonville, Arkansas, said she would try to return a call with the company's side of the story. But for the moment, forget Wal-Mart and Stanhope -- Weingarten rights, which were once held only by union workers were extended to all employees covered by the National Labor Relations Act because of a court decision in July 2000. The standard basically applies to all private-sector employees, with the exception of railroad and airline workers.

"I would say that most non-union employees don't know about Weingarten and most union employees are more up to speed on it," said attorney Mary Pate of the Anchorage-based law firm of Eide, Miller and Pate. Pate's specialty is representing non-union employers.

The same is true for employers. "NLRB vs. Weingarten" was a 1975 U.S. Supreme Court decision. The case was the result of a manager's investigation into allegations of employee theft. During a meeting with the manager, an employee under investigation repeatedly asked the manager to call in the union shop steward or other union representative. The manager refused, and eventually the NLRB and the U.S. Supreme Court found that refusal was a violation of the employee's rights.

NLRB and the courts have alternately broadened and narrowed Weingarten rights since the 1975 decision. In 1982, the NLRB extended Weingarten to non-union workers, and in a 1985 decision it narrowed the rights to include union workers only. Three decisions later, a 2000 case named after the Epilepsy Foundation of Northeast Ohio broadened Weingarten rights to include non-union, private sector employees.

Central to all of these cases is section 7 of the National Labor Relations Act which establishes the right of workers to collective bargaining and "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid." The Weingarten ruling originally asserted the employee's rights for three reasons. The first is to help the worker remember what was said in the meeting, the second is to make sure that questions are fair, and the third is to assist the worker in presenting their side of the story.

Weingarten rights, and the definition of "mutual aid" might seem to shift with the political winds, but Pate said employers shouldn't expect them to just go away. The best way for employers to limit potential complaints is to keep up with changes in labor law.

"The best way to say abreast is to read the newspapers, attend training and talk to your lawyer," Pate said. "There are lots of really good employment and labor law seminars out there available."

There are limits to Weingarten rights. The employer is not required to inform the worker of their right to a witness, the worker must ask for a witness. The worker must also have reason to believe that the meeting may result in disciplinary action. The rights could be asserted and applied even with the smallest employers.

"Arguably, in a nonunion setting, the only time your Weingarten rights would not apply is when there is not another employee," Pate said.

Assistant general counsel for Food and Commercial Workers union George Wiszynski said Weingarten cases shouldn't bother employers. Wiszynski is familiar with the local Wal-Mart case and about 10 similar cases like it around the country. Stanhope had a wallet card with him the day he was fired that was provided to him by the UFCW, which explained his Weingarten rights on one side and included a passage "to be read word-for-word to your supervisor" on the other.

On Weingarten, Wiszynski said most employers should benefit by allowing workers a witness of their choosing when it comes to disciplinary meetings.

"If the supervisor or manager is really on the level and acting in good faith, than it's not unreasonable to invite another employee into the meeting," Wiszynski said. ". . . the principle of the thing is good for employee communication and good for production," he said.

Wiszynski also believes that allowing an employee to assert their Weingarten rights could help a business if it is eventually accused of an illegal firing. Many companies already require two managers be involved in meetings that could result in firing or serious disciplinary action.

"They always have at least two managers in there, and what's the reason for that? That's to cut down on miscommunication and have a more productive meeting -- it's the same thing from the employee's point of view," Wiszynski said.