What are Weingarten Rights?
EMPLOYEE’S 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:
- stop questioning until the representative arrives.
- call off the interview, or
- 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.)
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/she may advise the employee on how to answer a question. At the end of the interview the union representative can add information to support the employee’s case.
Weingarten Questions
When is Protection Afforded?
Protection under Weingarten is afforded when an employee reasonably believes that disciplinary action may be the result of his/her meeting with the employer’s representative in an investigatory interview and where the employee requests representation.
- What is a “reasonable” belief is measured by objective standards, not the subjective motivations of the employee, based upon a reasonable evaluation of all the surrounding circumstances.
- An employee can participate in an interview without a representative if he/she foregoes his/her right to request one.
- Ordinarily, once a valid request for union representation is made, the burden is on the employer to either grant the request or offer the employee the choice between continuing the interview unaccompanied by a union representative or having no interview at all.
- An employer has no obligation to continue with an investigative interview once union representation is requested. It does not have to justify its refusal and can continue its investigation without questioning the employee and the employee then foregoes any benefits that may be derived from participating in an interview.
What Role Does the Union Representative Play?
- The representative’s role is to assist the employee and the representative may do so “by attempting to clarify the facts or suggest other employees who may have knowledge of them.” Weingarten, 420 U.S. 251 (1975).
- A representative oversteps his/her bounds in instructing an employee not to answer a question or questions during an interview. An employer may “eject” a representative who engages in such behavior because “it is within an employer’s legitimate prerogative to investigate employee misconduct in its own facilities without interference from union officials.” Weingarten, 420S. 251 (1975).
How do I request my Weingarten Rights?
If you are asked to meet with your principal, supervisor, or other administrative personnel, ask to clarify the purpose of the meeting. If you believe the meeting may result in discipline against you, say this to ensure your rights:
If the discussion I am being asked to enter into could in any way lead to my discipline or termination or affect my personal working conditions, I respectfully ask that a union representative be present at the meeting. Without representation, I choose not to answer any questions. That is my right under the U.S. Supreme Court decision called Weingarten.
Under these circumstances:
- You have the right to a representative of your choice present with you during the meeting;
- The meeting must be postponed a reasonable time to allow your representative to be present; and
- Threatening reprisal for requesting a representative and/or refusing to allow your representative to be present are unfair labor practices.