Weingarten Rights

Weingarten Rights

One of the most vital functions of a Union Representative is to prevent management from intimidating employees, or coercing employees into confessing to wrongdoing..

In 1975, in NLRB v. J. Weingarten, Inc, the U.S. Supreme Court announced the rights of employees in the presence of union representatives during investigatory interviews. Since that case involved a clerk being investigated by the Weingarten Company, these rights have become known as Weingarten rights.

Weingarten Rights have since been extended to non-union workplaces.

The NLRB ruled July 10, 2000, in Epilepsy Foundation of Northeast Ohio, Slip Opinion No. 331-92, Case No. 8-CA-28169, that Weingarten Rights also apply to non-union workplaces. An employee who is not represented by a union may request that a fellow employee be present during an investigatory interview that may lead to disciplinary actions.

The 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 either:

Grant the request and delay 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 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.

Unions should encourage workers to assert their Weingarten rights. The presence of a Union Representative can help in many ways. For example, The Union Representative can:

Help stop management from harassing or abusing the worker.
Help a fearful or inarticulate employee explain what happened.
Raise extenuating factors.
Advise an employee against blindly denying everything, thereby giving the appearance of dishonesty and guilt.
Help prevent an employee from making fatal admissions.
Advise the worker how to answer questions.
Stop an employee from losing his or her temper, and perhaps getting fired for insubordination.
Serve as a witness to prevent supervisors from giving a false account of the conversation.
Ask management to clarify any questions the member may not understand.
Request a recess during the meeting if more time is needed to talk privately with the member.
Request the to meeting continue another time if information is presented that requires additional investigation or preparation.

Management can have private conversations with workers that will not lead to discipline — issuing a warning or other disciplinary action. On the other hand, workers should know that a casual conversation with a member of management that starts harmlessly, but begins to lead to the possibility of trouble, can be stopped until a Union Representative can be asked to be present.

Note: the NLRB generally does not defer charges alleging a violation of Weingarten rights. Nor are violations considered de minimus even if no employee is disciplined.