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November 18, 2017
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General
THE WEINGARTEN RULE
Updated On: Jun 06, 2006

An employee's right to representation

WEINGARTEN RIGHTS

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

 

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:

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 supervisor denies the request for union representation and continues to ask questions, he or she commits an unfair labor practice and the employee has the right to refuse to answer. The supervisor cannot discipline the employee for such a refusal.

 

 

Rights of Stewards

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. Decided cases establish the following procedures:

1. 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.).

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

3. 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.

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

5. After a question is asked, the steward can give advice on how to answer.

6. When the questioning ends, the steward can provide information to the supervisor.

 

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.

 

These are Q and A from a Human Resource Web Site

Q: When, exactly, do Weingarten rights apply? Do I have to allow union representation every time I talk to an employee I supervise?

A: No, you do not have to permit union representation every time you talk to a subordinate employee. Weingarten rights are triggered when you will be interviewing an employee and he or she has a reasonable belief that the interview will result in disciplinary action. If you are merely announcing or reviewing a disciplinary decision that has already been made, Weingarten does not apply. Weingarten rights are also inapplicable to meetings that are part of a performance evaluation process, and to casual "shop floor" conversations. In other words, employees cannot insist on union representation every time a manager wants to talk to them.

Q: What if the employee I want to interview is merely a fact witness, and is not the focus of the investigation I am conducting?

A: If the employee to be interviewed is merely a fact witness, and will not be potentially subject to discipline based on the interview, Weingarten rights would not be triggered. Sometimes, however, the focus of your investigation may change during the investigation process. You may begin an interview believing that an employee is simply a fact witness, but during the course of the interview the employee provides information that implicates himself/herself in the misconduct you are investigating. If you find that the character of an interview changes during the course of the interview, and that the employee you are interviewing may now be subject to discipline based on the interview, you may need to adjourn the meeting and afford the employee his or her Weingarten rights (if the employee has requested union representation).

Q: Am I obligated to advise an employee of his or her Weingarten rights if I know that an interview may result in discipline of that employee?

A: Generally, it is up to the employee to request union representation, and an employer need not advise the employee of the right to union representation or offer representation before conducting an investigatory interview. This is one area, however, where you will want to consult the applicable labor agreement. Some collective bargaining agreements, particularly those in law enforcement, impose notice obligations in connection with any investigatory interview.

Q: Under Weingarten, do I have to allow an employee to bring his/her private attorney to the interview in lieu of or in addition to a union representative?

A: No. Weingarten rights arise under the collective bargaining laws, and therefore focus on the right to union representation. Weingarten does not require employers to permit an employee to bring a private attorney to an investigatory interview.

Q: Can the union insist on bring multiple representatives to an investigatory interview?

A: No. The Public Employment Relations Commission (PERC), which administers the state collective bargaining laws for public sector employers, has held that an employee who will be subjected to an investigatory interview is entitled to a single union representative. The union cannot insist on having additional representatives attend the interview for the purpose of representing the rights of other employees who may be affected by the information provided during the interview, for example, or for the purpose of representing the union's interests generally.

Q: Do non-represented employees have Weingarten rights?

A: No. Weingarten rights are only applicable to those employees who have union representation. A few years ago, the National Labor Relations Board (which administers the federal labor laws governing private sector employers) issued a decision extending Weingarten rights to non-union employees. The NLRB reversed that ruling in 2004, however, and held that Weingarten is inapplicable in a non-union setting. The PERC has never extended Weingarten to non-union employees. Thus, under current law in both the private and public sectors, Weingarten rights apply only to represented employees.

Q: What do I do if the employee requests union representation, but informs me that the union's business representative is not available for at least a week?

A: Generally speaking, an employee's exercise of the right to union representation must be balanced against the employer's need to conduct a timely and efficient investigation. The exercise of Weingarten rights cannot unduly interfere with the employer's legitimate needs. If possible in the context of what you are investigating, you should demonstrate some flexibility and reasonableness in allowing an employee to secure union representation. Giving an employee five minutes to find a union representative, for example, could be viewed as unreasonable, and insisting on proceeding with the interview where the employee could not secure representation in such limited time would likely constitute a Weingarten violation. On the other hand, an employer is not obligated to put off an interview for an extended period until the employee's choice of representative can be available. If an employee says it will be a week before the union agent can be available, you should explain that such a delay would interfere with a timely investigation (assuming that's the case) and that the employee should locate an alternative representative.

Unfortunately, there are no bright line rules with respect to how much time an employer must give an employee to secure union representation. It will turn on the need for the prompt investigation under the circumstances at hand, as well as how much time the employee is requesting to secure representation. For example, if you want to interview an employee because you have a reasonable suspicion that he is then under the influence of alcohol, you have an urgent need to investigate the situation immediately; if you waited a day to schedule the interview to allow the employee's choice of union representative to attend, your ability to investigate would obviously be compromised. In these situations, you can insist that the employee locate a shop steward or other union representative who could be available more readily. In other cases, however, it may not undermine your investigation to accommodate the employee's request and the availability of a particular union representative. The bottom line is that as long as you demonstrate reasonableness as to scheduling under the circumstances, Weingarten should be satisfied.

Q: Do I have to tell the union representative what the matter is about before the interview begins?

A: A union representative is entitled to a general idea about the purpose of an investigatory interview in advance of the interview. In cases where the actual interview leads you into a new subject area that you did not expect to cover when you began the interview, you should typically advise the union representative that you would like to pursue a new topic. You can offer to take a break in the interview so that the union representative can consult with the employee before pursuing the new subject during the interview.

Q: What is the role of the union representative during the investigatory interview? Can the representative try to speak for the employee, demand caucuses with the employee and/or ask questions?

A: The union representative's role is to be a witness, and also to point out information that may be helpful to the employee. For example, the union representative may interject questions to elicit information favorable to the employee, or suggest additional lines of inquiry. One or more brief caucuses with the employee should also be permitted, to allow the union representative to provide counsel to the employee. The union representative may also object to questions (although you can still ask them if you disagree that the questions are not inappropriate). While the union representative can thus be more than an observer, he or she should not attempt to answer questions for the employee or turn the interview into a mini-arbitration or hearing. You are entitled to ask your employee questions, and to receive information directly from the employee.

Q: What do I do if the employee declines or fails to request union representation at the outset of the interview, then suddenly asks for union representation in the middle of the interview?

A: Assuming the meeting is one to which Weingarten rights would apply, you should respect the employee's request for union representation. You can adjourn the interview temporarily to allow the employee to secure a union representative.

Q: Do Weingarten rights apply in a Loudermill hearing?

A: Technically, Weingarten does not apply to a Loudermill (i.e., pre-disciplinary) meeting. Loudermill rights are distinct from Weingarten rights. Loudermill rights arise from a public employee's due process rights, and entitle the employee to notice of the charges against him/her and an opportunity to respond to those charges. Thus, the purpose of the Loudermill meeting is generally to hear from the employee after the tentative disciplinary determination has been made. An employer is not typically going to continue the investigative process by asking the employee additional questions, which is what triggers an employee's Weingarten rights. Thus, Weingarten would not usually apply to a Loudermill hearing.

There are a couple of caveats in this area. First, if the employee provides information during the Loudermill meeting that prompts the employer to ask follow-up questions, the union may argue that Weingarten was triggered. Additionally, many employers have labor agreements, policies or practices that afford employees the right to union representation at a Loudermill meeting, so this is another area where you will definitely want to consult your labor agreement and other applicable policies.

Q: What are the consequences of failing to afford an employee his or her Weingarten rights?

A: The consequences of a Weingarten violation can be significant. The union may pursue an unfair labor practice charge with the PERC. In addition, it is quite possible that any discipline of the employee whose Weingarten rights were violated could be overturned. Arbitrators often consider whether the employer afforded the employee all procedural rights when evaluating whether there was just cause for discipline. In addition, arbitrators may well exclude any evidence that was obtained from an improper interview.


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