4/12/10 – Weingarten Rights /  EMPLOYEES’ RIGHT TO UNION REPRESENTATION:

The right of employees to have union representation at investigatory interviews was announced by the U.S. Supreme Court in a 1975 case (NLRB vs. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689). These rights have become known as the Weingarten rights.

Employees have Weingarten rights only during investigatory interviews. An investigatory interview occurs when a supervisor questions an employee to obtain information which could be used as a basis for discipline or asks an employee to defend his or her conduct.

If an employee has a reasonable belief that discipline or other adverse consequences may result from what he or she says, the employee has the right to request union representation. Management is not required to inform the employee of his/her Weingarten rights; it is the employee’s responsibility to know and request.

When the employee makes the request for a union representative to be present management has three options:
(I) it can stop questioning until the representative arrives.
(2) it can call off the interview or,
(3) it can tell the employee that it will call off the interview unless the employee voluntarily gives up his/her rights to a union representative (an option the employee should always refuse.)
If they tell the employee that disciplinary action will not result from the interview, the employee should make note of that assurance in case they are later disciplined for something that they said during that meeting.  If they are denied the right to representation, they should make note of the request, the refusal, and continue with the meeting.  They should cooperate and tell the truth, but stick to the questions asked, answer yes or no as much as possible, and not volunteer information about which they have not been asked.  They should keep notes of what was asked, what was said, and after the meeting ask to be granted time to seek out their union representative.  If we determine that their rights to representation were violated, we can file a grievance or an Unfair Labor Practice charge against management.

Employers will often assert that the only role of a union representative in an investigatory interview is to observe the discussion. The Supreme Court, however, clearly acknowledges a representative's right to assist and counsel workers during the interview.

The Supreme Court has also ruled that during an investigatory interview management must inform the union representative of the subject of the interrogation. The representative must also be allowed to speak privately with the employee before the interview. During the questioning, the representative can interrupt to clarify a question or to object to confusing or intimidating tactics.

While the interview is in progress the representative cannot tell the employee what to say but he may advise them on how to answer a question. At the end of the interview the union representative can add information to support the employee's case.