THE WEINGARTEN RULE

An employee's right to representation

An 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:

The 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

Many 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.

Weingarten rules: 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 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 is committing an unfair labor practice and the employee has the right to refuse to answer. The supervisor cannot discipline the employee for such a refusal.

If the supervisor obeys the law and waits to continue until the union’s representative arrives, the following rules apply:

A.) 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.).

B.) The steward must be allowed to take the worker aside for a private pre-interview conference before questioning begins.

C.) 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.

D.) The steward can request that the supervisor clarify a question so the worker can understand what is being asked.

E.) 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 additional information.

It 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.

Supervisors 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.

Be careful that you don’t 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.