Weingarten Rights

Weingarten Rights Statement

“I request to have a union representative present only behalf during this meeting because I believe it may lead to disciplinary action being taken against me.  If I am denied my right to have a union representative present, I will refuse to answer accusational questions and any I believe may lead to discipline.”

 

This statement is on the back of your Executive Board Member’s Business Card.  Keep their card with you and use it anytime you are subjected to an interrogation which might lead to discipline.

Topic:    WEINGARTEN RIGHTS

SUMMARY:
When management begins to ask you questions that could lead to you being disciplined, you don’t have to face it alone.  If you have a reasonable belief that answers you give could be used by the supervisor to discipline you, the United States Supreme Court says you can refuse to answer any questions until a union representative is on the scene and has had a chance to talk things over with you first.  It is your right to have the union representative present during the questioning to advise you, ask supervisors for clarifications, and provide additional information at the end of the session.  The employee subject to the interview must reasonably believe that the investigatory interview will result in disciplinary action.  A meeting called by the employer for the purpose of imposing discipline, is not an interview subject to Weingarten 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 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.  

One of the most vital functions of your Union Executive Board Member is to prevent management from intimidating employees.  Nowhere is this more important than in closed-door meetings when managers attempt to coerce employees into confessing to wrongdoing. 

You may be familiar with the “Miranda Warnings (Rights)” given by law enforcement agents.  The “Miranda Warnings” notify criminal suspects to their rights, including the right to a lawyer and to remain silent.  Unfortunately, the Supreme Court did not impose a notice requirement in its Weingarten decision.  Employers have no obligation to inform workers of their right to request union representation. 

The rights of employees, to the presence of union representatives, during interviews were announced by the U.S. Supreme Court in 1975 during a National Labor Relation Board hearing 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. 

Employees in Public Transit are often involved in investigatory interviews with their supervisors.  If these employees have a reasonable belief that discipline or other adverse consequences may result from what he or she may say, they have a right to request the presence of a Union Representative. 

Investigatory interviews usually relate to subjects such as absenteeism, customer complaints, accident, and damage to company property, alcohol and drug use, falsification of records, theft, insubordination, lateness/misses, and violations of safety rules. 

Public Transit employees should be aware of their Weingarten Rights. 

The presence of an Executive Board Member can help in several ways; such as: 

• The steward (Executive Board Member) can help a fearful or inarticulate employee explain what happened. 

• The steward (Executive Board Member) can raise extenuating factors. 

• The steward (Executive Board Member) can advise an employee against blindly denying everything, thereby giving the appearance of dishonesty and guilt. 

• The steward (Executive Board Member) can help prevent an employee from making fatal admissions. 

• The steward (Executive Board Member) can stop an employee from losing his or her temper, and getting fired for insubordination. 

• The steward (Executive Board Member) can serve as a witness to prevent supervisors from giving a false account of the conversations.
  

 

• What are Weingarten rights? 

Employees (currently whether a member of a union or not) have the right to insist upon the presence of a co-worker or union representative in an investigatory interview that is reasonably believed will result in disciplinary action against the employee.  The employee is also entitled to consult with such representative prior to the investigatory interview. 

• What employees have Weingarten rights? 

Weingarten rights currently apply to all employees who have the right to act concertedly and organize in accordance with the National Labor Relations act.  This, non-supervisory   employees in most occupations enjoy Weingarten rights.  In addition, it does not matter whether an employee is a member of a union.  The national Labor Relations Board recently expanded 9again) Weingarten rights to cover non-union employees in addition to union employees. 

• Do Weingarten rights apply automatically? 

No.  The employee must request the representation.  However, the employee’s request need not be technical or empathic.  Nor must the employee repeat a request for representation where an interview originally not anticipated to result in disciplinary action against the employee becomes so. 

• Can Weingarten rights be waived? 

Yes, but an employee’s waiver of Weingarten rights must be made knowingly and voluntarily, and it must be clear and unmistakable. 

• Do Weingarten rights apply to meetings only to impose discipline?

No.  Weingarten rights do not apply where a meeting or conference is intended solely to impose discipline.  Meetings to discuss work performance problems may or may not invoke Weingarten rights. 

• What amounts to a reasonable belief that an investigatory interview will result in disciplinary action? 

As noted above, in order for Weingarten rights to apply, an employee must have a reasonable belief that he/she will be subject to discipline as a result of an investigatory interview.  Where an employee has been advised that disciplinary action will not be taken, Weingarten rights will not apply.  Likewise, day-to-day office conversations or shop-floor discussion will generally not invoke Weingarten rights, unless an employee has reason to expect disciplinary action to result.  A drug or alcohol test may invoke Weingarten rights where the test is part of an investigation.  Routine fitness-for-duty tests do not typically invoke Weingarten rights. 

• Who may be an employee’s representative? 

In a union setting, an employee has the right to have a union representative or co-worker present during the investigatory interview.  In a non-union setting, an employee has the right to have a co-worker present.  If the chosen representative is not available, an employer can require the employee to select another representative.  In a union setting, however, the employee has the right to insist upon the presence of a union representative.  Private Counsel does not constitute ion representation.  Similarly, Weingarten rights do not include the right to have a private attorney present. 

• May the representative participate in the interview?

The representative is not required to remain silent during the interview, but the representative is not entitled to be hostile or adversarial, in a union setting the employer is not required to collectively bargain with a union representative. 

• May employer deny an employee Weingarten rights where a representative is not available? 

An employer may proceed with an investigatory interview without the employee’s chosen representative when such representative is unavailable.  An employer is not required to unduly delay an investigatory interview.  However, the employee must be provided an alternative representative if requested. 

• May an employer forego the interview rather than honor the employee’s Weingarten rights? 

Yes.  If an employee properly invokes his/her Weingarten rights, the employer may simply refuse the request and forego the interview.  While an employer may also impose any disciplinary action without utilization of such interview, such action may suggest retaliation.  Of course, the employee may waive his/her Weingarten rights and participate in an interview without representation, but employers must ensure that a waiver is knowing and voluntary. 

• Is it a violation to discipline an employee for invoking his/her Weingarten rights?

Yes.  It is a violation of the National Labor Relations Act to discipline an employee for invoking his/her Weingarten rights.  Similarly, it is a violation for an employer to discipline an employee for refusing to waive his/her Weingarten rights, i.e. participate in the interview without representation. 

• May an employer discipline an employee for improperly or mistakenly refusing to participate in an interview? 

Generally, yes.  If Weingarten rights do not apply, an employer may discipline an employee for refusing to participate in an interview absent representation.  Also, if Weingarten rights apply, an employer may discipline an employee who refuses to participate in an interview even with representation. 

• What remedies are available to an employee whose Weingarten rights have been violated? 

Full make-whole remedies, including reinstatement and back-pay, are available to an employee whose Weingarten rights have been violated.  Where disciplinary action is taken against an employee based on information obtained apart from the violative interview, though, make-whole remedies may not be applicable. 

• What foundation are Weingarten rights based upon? 

Weingarten rights based upon three sources of law: (1) section 7 of the National Labor Relations Act, which gives employees the right to act concertedly for their mutual aid and protection; (2) the United States Supreme Court, which has endorsed Weingarten rights for unionized employees, and (3) the National Labor Relations Board, which currently endorse Weingarten rights for both union and non-union employees.