What are Weingarten Rights?
Weingarten Rights guarantee 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 have union representation during investigatory interviews was announced by the U.S. Supreme Court in 1975 in NLRB vs. J. Weingarten, Inc.
If you are called into a meeting to answer questions about your decisions or conduct at work, UAPD strongly recommends that you request union representation. Immediately contact your local UAPD steward or call the UAPD Office at 1-800-622-0909 to be put in touch with the labor representative assigned to your facility. You can also find contact information for your labor representative here.
Continue to request union representation even if your manager encourages you to proceed without a representative. If you reasonably believe the meeting could lead to discipline, you should continue to request representation and not answer any questions until a representative arrives.
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. It is NOT the responsibility of the employer to inform the employee of his or her right to have a union representative present.
Rule #2: After the employee makes the request, the employer must choose from among three options. The employer must:
- Grant the request and delay the questioning until the union representative arrives and has a chance to consult privately with the employee; or
- Deny the request and end the interview immediately; or
- 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 (ULP) and the employee has a right to refuse to answer. The supervisor cannot discipline the employee for such a refusal.
What Counts as 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
- Poor attitude
- Violation of work rules
- Unprofessional conduct
- Work performance
- Damage to the employer’s property
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.
The Rights of Stewards and Labor Representatives
Management representatives often assert that the only role of a steward or labor representative at an investigatory interview is to observe the discussion, in other words, to be a silent witness. The Supreme Court, however, clearly acknowledged a steward’s right to assist and counsel employees during the interview. Subsequent cases have established the following standards:
- When the representative arrives, the supervisor must inform them of the subject matter of the interview.
- The representative must be allowed to take the employee aside for a private pre-interview caucus before questioning begins.
- The representative must be allowed to speak during the interview. However, the representative does not have the right to bargain over the purpose of the interview or to impede it.
- The representative can request that the supervisor clarify a question, and can object to the employee being badgered.
- After a question is asked, the representative can give advice on how to answer.
- When the questioning ends, the representative can provide additional information to the supervisor.
- The representative can request a break in the questioning to caucus with the employee.
- The representative cannot tell employees to refuse to answer questions or give false answers.