THE WEINGARTEN RULE
An employee's right to representation
employee may be represented by the union at an investigatory interview with his
or her supervisor when the employee reasonably believes that the interview may
lead to a disciplinary action.
U.S. Supreme Court ruling:
rights of employees to the presence of union representatives during
investigatory interviews was announced by the U.S. Supreme Court in 1975 in NLRB
v. J. Weingarten, Inc.
Since that case involved a clerk being investigated by the Weingarten Company,
these rights have become known as Weingarten Rights.
What is an investigatory interview?
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 a right to request union representation. Investigatory interviews usually relate to subjects such as:
Absenteeism, drinking, fighting, poor attitude, violation of safety rules, accidents, drugs, insubordination, sabotage, work performance, damage to state property, falsification of records, lateness, theft, violation of work procedures
workers crumble in the face of questioning by their supervisors or other
management type. They get rattled and start explaining and making excuses and
apologizing and often end up giving the supervisor ammunition to do whatever he
or she wants. They often become like the suspects you see in police shows on
television; they fess up to things that maybe never even happened or say things
in such a way that they worsen the problem rather than talk their way out of it.
However unlike Miranda rights, which police are suppose to tell criminal
suspects, employers/supervisors DO NOT have to tell union represented employees
about their Weingarten rights.
rules: Under the Supreme Court's Weingarten decision, when an investigatory
interview occurs, the following rules apply:
The employee must make a clear request for union representation before or during the interview. The employee cannot be punished for making this request.
the employee makes the request, the employer must choose from among three
options. The employer must:
(1) Grant the request and
delay 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
representation or (2) ending the interview.
the supervisor denies the request for union representation and continues to ask
questions, he or she is
an unfair labor practice and the employee has the right to refuse to answer. The
supervisor cannot discipline the employee for such a refusal.
the supervisor obeys the law and waits to continue until the unionís
representative arrives, the following rules apply:
When the steward arrives,
the supervisor must inform the steward of the subject matter of the interview;
i.e., the type of conduct for which discipline is being considered (theft,
lateness, drugs, etc.).
The steward must be allowed
to take the worker aside for a private pre-interview conference before
The steward must be allowed
to speak during the interview. The steward, however, does not have the right to
bargain over the purpose of the interview.
The steward can request
that the supervisor clarify a question so the worker can understand what is
After a question is asked,
the steward can advice
the worker on how to answer any and all questions, can object to improper
questioning, and has the right, once the questioning has ended, to provide
must be emphasized that if the Weingarten rights are complied with, stewards
have no right to tell workers not to answer questions or to give false answers.
often assert that the only role of a steward at an investigatory interview is to
observe the discussion, i.e., to be a silent witness. The Supreme Court,
however, clearly acknowledged a steward's right to assist and counsel workers
during the interview.
careful that you donít give Weingarten more power than it has. The rights DO
NOT extend to meetings where no questioning is involved,
one-way communications from the supervisor to the worker, or a discussion
without the threat of discipline about job performance. Union represented
employees can call their Weingarten rights into play if they have a reasonable
expectation that a disciplinary action may result from the interview.