One of the most vital functions of a Union is to prevent management from intimidating employees. Nowhere is this more important than in closed-door meetings when supervisors attempt to coerce employees into a confession of wrongdoing.
The right of employees to have the presence of union representatives during investigatory interviews was announced by the U.S. Supreme Court in 1975 in NLRB vs. J. Weingarten, Inc. Since that case involved a clerk being investigated by the Weingarten Company, these rights have become known as the Weingarten rights.
Unions should encourage workers to assert their Weingarten rights. The presence of a union representative can help in many ways. For example:
v They can help a fearful or inarticulate employee explain what happened.
v They can raise extenuating factors.
v They can advise an employee against blindly denying everything, thereby giving the appearance of dishonesty and guilt.
v They can help prevent an employee from making fatal admissions.
v They can stop an employee from losing his or her temper, and perhaps getting fired for insubordination.
v They can serve as a witness to prevent supervisors from giving a false account of the conversation.
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 that 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:
v damage to company property
v falsification of records
v poor attitude
v violation of safety rules
v work performance
If an employee has determined that disciplinary action may result from the investigatory interview, a simple statement such as:
“If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I respectfully request that my union representative, officer, or steward be present at the meeting. Without representation, I choose not to answer any questions.”
would be enough to enforce their federally protected rights.
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 a request for union representation, and continues to ask questions, they have committed 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.