Knowing Your Weingarten Rights

The United States Supreme Court has ruled that an employee is entitled to have a union representative present at an investigatory interview by an employer if the employee “reasonably believes” the investigation might result in disciplinary action. (NLRB vs Weingarten, Inc., U.S. Sup. Ct. and ILGWU vs Quality MFG., U.S. Sup. Ct., 1975). These rights have become known as Weingarten Rules or Rights. Under the Weingarten Rules, if an employee believes that a discussion with management, at any time before or during the discussion, could possibly result in disciplinary action against them, they have the right to request union representation.

The crucial issue is what is reasonable in the employee’s mind. It is not decisive that management says it is “certain” that no disciplinary action will result from the meeting or gives such assurances to the employee. It is simply not the employers decision but it is the employee’s decision. The employee only needs to be able to point to objective factors that warrant a fear that discipline may result from the interview. These factors include:

·        the employee’s prior disciplinary record,

·        the events leading to the interview,

·        the location of the interview,

·        the company representatives present at the interview, and the company’s opening words at the interview.

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, “I want union representation before we continue”, 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:

a.         Grant the request and delay questioning until a union representative arrives and has a chance to consult privately with the employee; or

b.         Deny the request and end the interview immediately; or

c.         Give the employee a choice of (1) having the interview without representation (it is not recommended that an employee ever choose this option) or (2) ending the interview.

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

In conclusion, I would just repeat that the request for union representation, because of a belief that an interview could lead to disciplinary action, is in the control of the employee and not management.

The following statement may be used by an employee when faced with a disciplinary meeting:

“I believe this discussion could lead to my being disciplined. I therefore request that my union representative or officer be present to assist me at the meeting. I further request reasonable time to consult with my union representative regarding the subject and purpose of the meeting. Please consider this a continuing request; without representation, I shall not participate in the discussion. I shall not consent to any searches or test affecting my person, property, or effects without first consulting with my union representative.”