August 10, 2020

Volume X, Number 223

August 10, 2020

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Labor Law Lessons from Our Favorite Films: Dirty Dancing (Weingarten Rights – Nobody Puts Weingarten In The Corner)

As noted in our previous post about Dirty Dancing, as part of its investigation into thefts of guests’ property, the resort owner interviewed staff dance instructor, Johnny Castle (Johnny denies involvement in the burglaries), to determine whether he had an alibi for the evening when Moe Pressman’s wallet was stolen. We now know that Castle responded that he was in his room reading all evening. The resort owner’s grandson, Neil Kellerman, found this explanation implausible as there were no books in Castle’s room. However, the movie may have ended differently if Johnny had availed himself of rights afforded to him by the Supreme Court’s decision in NLRB v. Weingarten, 420 U.S. 251, 257 (1975), and its progeny.

For purposes of this analysis, assume that: (1) Johnny was a member of a union (he said his uncle was able to secure him an apprenticeship with a painting union); and (2) Weingartenrights existed in 1963 (as noted above, Weingarten was decided in 1975).

The Law

In Weingarten, the Supreme Court held an employee who reasonably believes an investigatory interview will result in disciplinary action against him or her has the right, upon request, to be accompanied at that interview by a union representative, usually a co-worker/steward. See Weingarten, 420 U.S. at 257. The Weingarten right does not prevent an employer from opting not to proceed with the interview and instead simply taking disciplinary action without hearing the employee’s explanation.

The Application

Clearly, Johnny’s explanation that he was reading in his room on the night in question, at best, was dubious and, in reality, false. In fact, Johnny’s lackluster explanation was the prime motivation behind the resort’s decision to terminate his employment (which arguably sets in motion the chain of events that puts Baby in a corner).

In an alternate scene, however, Johnny triggers his Weingarten rights by requesting that a representative be present when he is interviewed by Neil Kellerman. In response, Kellerman’s decides not to conduct an interview and simply takes disciplinary action without hearing Johnny’s explanations. Accordingly, based exclusively on Moe Pressman’s wife’s false account of the incident, Johnny is summarily terminated and escorted off the property. Baby never has the opportunity to tell  the resort’s owner that Johnny was innocent because she was with Johnny the entire night the wallet was stolen. Instead of a final scene where Johnny utters “Nobody puts Baby in the corner..,”  the movie fast-forwards to a regional office of the National Labor Relations Board where Johnny is seen filing an unfair labor practice charge based upon the events described in last week’s post.

Not the perfect Hollywood ending.

Jackson Lewis P.C. © 2020National Law Review, Volume VII, Number 236

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About this Author

Daniel D. Schudroff, Jackson Lewis, Employment Litigation Lawyer
Associate

Daniel D. Schudroff is an Associate in the New York City office of Jackson Lewis P.C.  His practice is focused on traditional labor matters, employment litigation, and counseling.  Mr. Schudroff represents clients in both federal and state courts, as well as before administrative agencies including the National Labor Relations Board, New York State Public Employment Relations Board, Equal Employment Opportunity Commission, New York State Division of Human Rights, New York City Commission on Human Rights, and New York State Department of...

(212) 545-4000
Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.

Mr. Rosen has extensive experience advising clients developing integrated corporate-wide labor relations strategies - whether the organization is union-free, partially unionized or entirely unionized. He has led teams conducting multi-facility labor-related legal assessments where clients are seeking to develop creative, strategic legal approaches which anticipate major issues and achieve a company’s labor relations goals. Mr. Rosen also has advised clients being confronted with corporate campaigns and requests for neutrality agreements. He has represented organizations seeking to maximize management rights through their development of pro-active employee relations approaches to remain union-free. He also has advised unionized organizations on lawful negotiating strategies – in situations ranging from “hard bargaining” to recapture management rights to more “cooperative” negotiations – in all cases, providing legal advice designed to assist clients in achieving their primary goals.

212-545-4000