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Legal & Employment Guidance

Understanding Weingarten Rights, Due Process, & Contract Enforcement

As a public school employee you may encounter situations where disciplinary action is taken against you. Remember, you have rights and you need to use them.
By: ESEA
Published: May 27, 2024

Your Discipline, Grievances and Due Process Rights

Professional Issues: Collective bargaining agreement violations do happen. Contact your Association Representative as soon as possible and keep a journal of events.
Evaluations: Before an evaluation by your supervisor, review your contract and district policy on evaluations. If you receive a negative evaluation, contact your Building Representative or Association Representative as soon as possible.
Reprimands and Suspensions: If you are disciplined, reprimanded, suspended or dismissed contact your union representative as soon as possible even if you believe the action was warranted.

Weingarten Rights

Did you know you have  The rights of employees covered by the NLRA to request union representation during investigatory interviews if they reasonably believe that the interview could result in their being disciplined. Weingarten rights also guarantee the rights of union representatives to assist and counsel employees during interviews which could lead to discipline. ?

Your rights

These rights mean every ESEA member is guaranteed the right to union representation during an investigatory interview conducted by his or her employer if the interview could in any way lead to discipline, including termination, or could affect the member’s personal or working conditions. In this situation, the member should request that a building representative or officer be present at the meeting. Without this representation, the member has the right to choose not to answer any questions per the United States Supreme Court case of NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). It is very important to remember that the employer does not have to advise an employee of his or her rights under Weingarten.

You may wish to request representation any time the purpose of the meeting is any of the following:

  • Any type of disciplinary action;
  • Investigation meeting;
  • Reprimand;
  • Infraction of a work rule or board policy;
  • Questions concerning a request or use of any leave;
  • Allegations of abuse; and
  • Parental, student or community complaint.

Ensure your rights

Members should ask their principal, supervisor, or other management personnel to clarify the purpose of the meeting to determine if union representation is needed. You can use the following language to ensure your rights:

If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I respectfully request that my Association representative be present at the meeting. Without representation, I choose not to answer any questions. That is my right under a U.S. Supreme Court decision called Weingarten.

When the employee makes the request for a union representative to be present, the employer can do any of the following: (1) stop questioning until the representative arrives; (2) cancel the interview; or (3) tell the employee it will cancel the interview unless the employee voluntarily gives up his or her rights to representation. No member should ever waive their right to representation.

For more information about your rights as an ESEA member, speak to your local leadership or contact us.

Do This, Not That

If you are charged with job-related violations or your supervisor asks to meet with you to discuss concerns about your performance or conduct...

Do This
Contact your local employee rights representative immediately.
Instead of
Agreeing to meet without a union representative, admitting guilt, or accepting blame in any incident.
Do This
Listen carefully to the employer’s concerns or accusations, and then ask for time before you respond.
Instead of
Making statements or responding to questions prior to consultation with your union representative.
Do This
Insist that a local representative be present for any interview or meeting regarding allegations of misconduct, poor performance or possible charges against you.
Instead of
Agreeing to pay any expenses for any damage, making restitution, etc., revealing your liability coverage(s), or hiring a private attorney before understanding your legal defense benefits, coverage, and limitations.
Do This
Meet deadlines with appropriate responses.
Instead of
Resigning prior to discussing your employment options with your union representative.

The Grievance Process

The detailed Grievance and Arbitration Procedure can be found in Article 4 of in ESEA's contract. Download your contract to read all details. Timelines are very important to know, observe, and meet in a grievance. Do not wait to alert ESEA if you believe that you may have grounds to file a grievance.
Context

What is a Grievance? Why do I need to follow a process?

Generally, a grievance is a violation of the collective bargaining agreement (our contract) where a formal written complaint is filed with the employer by the grievant (an individual employee or ESEA). The grievance process is part of the contract and was negotiated by ESEA.
Step 1

Informal Discussion

Within 30 days of the alleged contract violation, the grievant (an individual employee or ESEA) and the Immediate Supervisor or Appropriate Administrator to attempt resolution before filing a formal grievance. It is your right to request and have union representation in this meeting.
Step 2

Formal Filing

Grievances cannot always be resolved with informal discussion. If the grievance cannot be resolved at Step 1, the grievant may submit the unresolved grievance to the Superintendent's designee.
Step 2 (continued)

Meeting with Employee-Management Relations

Within 5 days of the grievance being formally filed, the superintendent's designee, Employee-Management Relations, will meet with the grievant to attempt to seek resolution. It is your right to request and have union representation in this meeting.
Step 2 (continued)

Employee-Management Relations Response

If the grievance cannot be resolved in the meeting with Employee-Management Relations, within 10 days of the meeting, Employee-Management Relations shall submit a written response to the grievant. If Employee-Management Relations fails to meet the timeline, the grievance will be deemd in favor of the grievant. However, if the grievance is denied or not resolved, the grievant can proceed to Step 3 by filing a demand for arbitration, which also has strict timelines and deadlines.
Step 3

Arbitration

If the grievance is not resolved in Step 2 within the required time limit, the grievant may file a demand for arbitration with Employee-Management Relations within 20 days of the expiration of the timeline in Step 2.
Step 3 (continued)

Mediation

Either the grievant or Employee-Management Relations may request a non-binding mediation through their representatives before proceeding to a binding arbitration. Unless otherwise mutually agreed, all contractual timelines must be observed during mediation.
Step 3 (continued)

Arbitration

If mediation is not requested or does not resolve the grievance, the arbitration will take place with an arbitrator from a list mutually agreed upon by ESEA and the District. It is your right to request and have union representation in an arbitration hearing. Unless otherwise mutually agreed upon, the arbitrator shall only rule on disputes that qualify as a grievance according to the contract.
Step 3 (continued)

Arbitration Decision

The arbitrator's decision shall be submitted in writing within thirty (30) days of the close of arbitration or submission of post hearing briefs, whichever comes later, to all parties and shall be final and binding unless the arbitrator acts outside the authority of the contract's powers or makes a procedural error that is prejudicial to the rights of the grievant or the District.
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