AFSCME Local 206
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A Guide to Weingarten Rights

 

What are Winegarten Rights?

Winegarten rights state that an employee may be represented by their Union at an investigatory interview with his/her supervisor when the employee reasonably believes that the interview may lead to a disciplinary action. The right of employees to the presence of union representation during investigatory interviews was announced by the U.S. Supreme Court in 1975 in NLRB vs. J. Weingarten, Inc.  Because that case involved a clerk being investigated by the Weingarten Company, these rights have become known as Weingarten Rights.

 

What is an Investigatory Interview?

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 or any action.  Employees have Weingarten rights only during investigatory interviews. If an employee has a reasonable belief that discipline or other adverse consequences may result from what he or she says, the employee has a right to request union representation. 

 

The following is a list of possible subjects of an Investigatory Interview:

 

  • Time card fraud
  • Falsification of records
  • Tardiness
  • Absenteeism
  • Poor attitude
  • Insubordination
  • Violation of work rules
  • Unprofessional conduct
  • Work performance
  • Accidents
  • Damage to the employer’s property
  • Sabotage
  • Theft
     

However, a meeting to discuss changes to your work schedule or to discuss work duties and job assignments does not entitle an employee to union representation.  

 

Rules regarding Weingarten Rights

Under the Supreme Court’s Weingarten decision, when an investigatory interview occurs, the following rules apply:

 

Rule #1:  The employee must make a clear request for union representation before or during the interview.  The employee cannot be punished for making this request.

Rule #2:  After the employee makes the request, the employer must choose from among three options.  The employer must:

  1. Grant the request and delay the questioning until the union representative arrives and has a chance to consult privately with the employee; or
  2. Deny the request and end the interview immediately; or
  3. Give the employee a choice of (1) having the interview without representation or (2) ending the interview.

Rule #3:  If the supervisor denies the request for union representation and continues to ask questions, he or she commits an unfair labor practice and the employee has a right to refuse to answer.  The supervisor cannot discipline the employee for such a refusal.

 

UAPD recommends that employees facing an investigatory interview request union representation, and continue to request it even if the supervisor encourages the employee to proceed without a representative.  The supervisor is not allowed to site the employee for insubordination for making that request, and the union can file an unfair labor practice charge if the supervisor denies the employee’s request for representation.