Weingarten rights guarantee an employee the right to Union representation during an investigatory interview. These rights, established by the Supreme Court in 1975, must be claimed by the employee. The supervisor has no obligation to inform an employee that s/he is entitled to Union representation during an investigatory interview.
An investigatory interview is one in which management questions an employee to obtain information that could be used as a basis for discipline or asks an employee to defend his/her conduct. If an employee has a reasonable belief that discipline or discharge may result from what s/he says, the employee has the right to request Union representation.
Under the Weingarten decision, the following rules apply to investigatory interviews:
- The employee can request union representation before or at any time during the interview.
- When an employee asks for representation, the employer must choose from among three options:
- Grant the request and delay questioning until the union representative arrives;
- Deny the request and end the interview immediately; or
- Give the employee a choice of: (a) having the interview without representation or (b) ending the interview.
- If the employer denies the request for union representation and continues the meeting, the employee can refuse to answer questions, but is required to sit there until the supervisor terminates the interview. Leaving before this happens may constitute punishable insubordination.
- An employer’s failure to comply with a worker’s request for union representation, or a violation of any other Weingarten right, is an unfair labor practice.
Union representation at an investigatory interview may be advantageous based upon the ability of the Union representative to:
- Serve as witness to prevent false account of the proceedings
- Object to intimidation tactics or confusing questions
- Help an employee to avoid making fatal admissions
- Advise an employee, when appropriate, against denying everything, thereby giving the appearance of dishonesty and guilt
- Warn an employee against losing his or her temper
- Discourage an employee from informing on others
- Raise extenuating factors.
An employee has NO right to the presence of a Union representative where:
- The meeting is merely for the purpose of conveying work instructions, training or communicating needed corrections in the employee’s work techniques.
- The employee is assured by the employer prior to the interview that no discipline or employment consequences can result from the interview.
- The employer has reached a final decision to impose certain discipline on the employee prior to the interview, and the purpose of the interview is to inform the employee of the discipline or to impose it.
- Any conversation or discussion about the previously determined discipline which is initiated by the employee and without employer encouragement or instigation after the employee is informed of the action.
It is important to note, even in the above circumstances, the employee can still ask for Union representation. Most employers will permit a representative to attend even when not required to.
If any discussion with management—from a closed-door meeting to a conversation with a supervisor on the job—could lead to the possibility of discipline, UFA members should immediately ask for Union representation. The request can be made at any point.
Ideally, the UFA member should say: “If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I request that my Union representative (or a union officer) be present. Without representation, I choose not to answer any questions.”