weingarten

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 employees 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 emplovee 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 can not 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.

On June 15, 2004, The National Labor Relations Board ruled by a 3-2 vote that employees who work in a nonunionized workplace are not entitled under Section 7 of the National Labor Relations Act to have a coworker accompany them to an interview with their employer, even if the affected employee reasonably believes that the interview might result in discipline.
This decision effectively reversed the July 2000 decision of the Clinton Board that extended Weingarten Rights to nonunion employees.

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 either:

RULE 3:
If the employer denies the request for union representation, and continues to ask questions, it commits an unfair labor practice and the employee has a right to refuse to answer. The employer may not discipline the employee for such a refusal.

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(If called to a meeting with management, read the following or present this card to management when the meeting begins.)

If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I respectfully request that my union representative, officer, or steward be present at this meeting. Until my representative arrives, I choose not to participate in this discussion.

A VITAL FUNCTION of a steward is to prevent management from coercing employees into confessions of misconduct. This is especially important when a worker is questioned by a supervisor experienced in interrogation techniques.

The NLRA’s protection of concerted activity includes the right to request assistance from union representatives during investigatory interviews. This was declared by the Supreme Court in 1975 in NLRB v. J. Weingarten, Inc¹⁹⁵. The rights announced by the Court have become known as Weingarten rights.

Unions should educate their members about the advantages of having a steward present at an investigatory interview. These include the ability of the steward to:

Weingarten rights apply only during investigatory interviews. An investigatory interview occurs when: (1) management questions an employee to obtain information; and (2) the employee has a reasonable belief that discipline or other adverse consequences may result. For example, an employee questioned about an accident would be justified in fearing that she might be blamed for it. An employee questioned about poor work would have a reasonable fear of disciplinary action if he should admit to making errors.

Shop-floor conversation. Not every discussion with management is an investigatory interview. For instance, a supervisor may speak with an employee about the proper way to do a job. The supervisor may even ask questions. But because the likelihood of discipline is remote, the conversation is not an investigatory interview.

A shop-floor conversation can change its character, however. If the supervisor’s attitude becomes hostile and the meeting turns into an investigatory interview the employee is entitled to representation.

Disciplinary announcement. When a supervisor calls an employee to the office to announce a warning or other discipline, is this an investigatory interview? The NLRB says no, because the supervisor is merely informing the employee of an already-made decision.¹⁹⁶ Unless the supervisor asks questions about the employee’s conduct, the meeting is not investigatory.

Under the Supreme Court’s Weingarten decision, the following rules apply to investigatory interviews:

Employers sometimes assert that the only function of a steward at an investigatory interview is to observe the discussion; in other words, to be a silent witness. This is incorrect. The steward must be allowed to advise and assist the employee in presenting the facts. When the steward arrives at the meeting:

Employees sometime confuse Weingarten rights with Miranda rights. Under the Supreme Court’s Miranda decision, police who question criminal suspects in custody must notify them of their right to have a lawyer present. The Supreme Court did not impose a similar requirement in Weingarten. An employer does not have to inform an employee that he or she has a right to union representation.

Unions should explain Weingarten rights to members in newsletters and at union meetings. Consider distributing wallet-sized cards such as the following:

An employer’s failure to comply with a worker’s request for union representation, or a violation of any other Weingarten right, is an unfair labor practice. Unless a grievance is pending on the matter, the NLRB does not defer Weingarten charges.²⁰³

Q. If I see a worker being questioned in a supervisor’s office, can I ask to be admitted?

A. Yes. A steward has a right to insist on admission to a meeting that appears to be a Weingarten interview.²⁰⁴ If the interview is investigatory, the employee must be allowed to indicate whether he or she desires the steward’s presence.²⁰⁵

Q. An employee, summoned to a meeting with her supervisor, asked for her steward. The supervisor said, “You can request your steward, but if you do, I will have to bring in the plant manager and you know how temperamental she is. If we can keep it at this level, things will be better for you.” Is this a Weingarten violation?

A. Yes. The supervisor is raising the specter of increased discipline to coerce an employee into abandoning her Weingarten rights.²⁰⁶

Q. A supervisor told an employee to report to the personnel office for a “talk” about his attendance. The employee asked to see his steward but the supervisor said no. Can the employee refuse to go to the office without seeing his steward first?

A. No. Weingarten rights do not arise until an investigatory interview actually begins. The employee must make a request for representation to the person conducting the interview.²⁰⁷ An employee can only refuse to go to a meeting if a supervisor makes clear in advance that union representation will be denied at the interview.²⁰⁸

Q. Our employer requires medical examinations when workers return from medical leaves. Can an employee insist on a steward during the examination?

A. No. A run-of-the-mill medical examination is not an investigatory interview.²⁰⁹

A. Yes. An employee has a right to union assistance during the pre-examination interview and the test itself.²¹⁰

Q. If management asks an employee if he will submit to a test for alcohol, does Weingarten apply?

A. Yes. The employee must be allowed to consult with a union representative to decide whether or not to take the test.²¹¹

Q. If a guard orders an employee to open a locker, can the employee insist on a steward being present?

Q. An employee was given a written warning for poor attendance and told she must participate in counseling with the human relations department. Does she have a right to a union steward at the counseling sessions?

A. This depends. If notes from the sessions are kept in the employee’s permanent record, or if other employees have been disciplined for what they said at counseling sessions, an employee’s request for a steward would come under Weingarten.²¹³ But if management gives a firm assurance that the meetings will not be used for discipline, and promises that the conversations will remain confidential, Weingarten rights would probably not apply.²¹⁴

Q. Can a worker insist on a private attorney before answering questions at an investigatory interview?

A. No. Weingarten only guarantees the presence of a union representative.²¹⁵

Q. Over the weekend, a supervisor called a worker’s home to ask about missing tools. Did the worker have to answer the questions?

A. No. Weingarten applies to telephone interviews. An employee who fears discipline can refuse to answer questions until the employee has a chance to consult with a union representative.²¹⁶

Q. If a worker’s steward is out sick, can the worker insist that a Weingarten interview be delayed until the steward returns?

A. Usually, no. Management does not have to delay an investigation if another union representative is available to assist the employee.²¹⁷

Q. If a steward is called in by supervision to discuss her work, can she insist on the presence of another steward?

Q. When management calls a meeting to go over work rules, do employees have a right to demand a union representative?

A. No. Weingarten rights do not arise unless management asks questions of an investigatory nature.²¹⁹

Q. If management rejects a worker’s request for union assistance at an investigatory interview, induces him to confess to wrongdoing, and fires him, will the NLRB order the worker reinstated because of the Weingarten violation?

A. No. The NLRB considers reinstatement to be an unwarranted “windfall” for an employee who confesses to serious misconduct.²²⁰ The usual Weingarten remedy is a bulletin-board posting in which the employer acknowledges that it violated the Weingarten rules and promises to obey them in the future.

NOTE: The remedy is different when an employee is discharged for requesting a steward or refusing to answer questions without one. In such cases, the NLRB orders reinstatement with back pay.²²¹ A make-whole remedy is also imposed if an employee is demoted, transferred, or loses privileges because of a request for union representation.

A. This depends. The Weingarten decision itself does not forbid an employer from tape recording an investigatory interview. But, if this represents a new policy on the part of the employer, the steward can object on the grounds that the union did not receive prior notice and an opportunity to bargain.²²²

Q. If an employee asks to be represented by her chief steward instead of her departmental steward, must management comply?

A. Usually, yes. If two representatives are equally available, an employee’s request for a particular representative must be honored.²²³

Q. If a worker is summoned to a meeting and asked about the role of other employees in illegal activities, can he insist on assistance from a union representative?

A. Yes. Although the employee may not be involved in wrongdoing himself, he risks discipline if he refuses to inform on others or admits that he was aware of illegal activities. Because what he says at the meeting could get him into trouble, he is entitled to union representation.

Q. The company is interviewing employees about drug use in the plant. If I tell my people not to answer questions, could management go after me?

A. Yes. A union representative may not obstruct a legitimate investigation into employee misconduct.²²⁴ If management learns of such orders, you could be disciplined.