Unionized employees have had the right to have a union representative present at interviews since 1975, when the U.S. Supreme Court decided the case of NLRB v. J. Weingarten, Inc. Since the case involved a clerk being investigated by the Weingarten Company, these rights have become known as Weingarten Rights.
An investigatory interview occurs when a supervisor questions an employee to obtain information which could be used as a basis for discipline or asks as 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.
These interviews usually relate to subjects such as:
Absenteeism, Insubordination, Lateness, Theft, Sabotage, Fighting, Work Performance, Violation of Work, Poor Attitude, Procedures, Falsification of Records, Accidents, Drugs, or Drinking.
In these situations and upon the employee's request for a union representative the employer cannot require the em-ployee to meet without a union representative present. The failure to observe an employee's Weingarten right consti-tutes a violation on the National Labor Relations Act and makes any resulting discipline of the employee unlawful.
Rules to follow:
1. You must make a clear request for union representation before or during the interview. You cannot be punished for making this request.
2. After you have made the request, the employer must choose from among three options.
1) Grant the request and delay questioning until the union representative arrives and has a chance to consult privately with the employee; or
2) Deny the request and end the interview immediately; or
3) Give the employee a choice of:
(1) having the interview without representation or
(2) ending the interview immediately.
If a supervisor denies your request for union representation and continues to ask questions, he or she is committing an unfair labor practice and you have the right to refuse to answer.
Remember you cannot be punished or disciplined in any way for using the
During the interview there are certain rights of the union representative because supervisors will often assert that the only role of a Union representative at the interview is to observe the discussion. However, The Supreme Court clearly acknowledged a union representative's right to assist and counsel workers during these interviews. The Supreme Court used past decided cases to establish the following procedures:
1. Once the union representative arrives, the supervisor must inform the representative of the subject matter; i.e., the type of conduct for which discipline in being considered (lateness, violation of safety rules, accident, etc.).
2. The union representative must be allowed to take the worker aside for a private pre- interview conference before the questioning begins.
3. The union representative must be allowed to speck during the interview. The union representative, however, does not have the right to bargain over the purpose of the interview.
4. The union representative can request that the supervisor clarify a question so the worker can understand what is being asked.
5. After a question is asked, the union representative can give advice to the worker on how to answer. When the questioning ends, the union representative can provide information to the supervisor.
It must be emphasized that if the Weingarten rights are complied with, union representatives have no right to tell workers not to answer questions or to give false answers.
In 1982, the Board issued a decision extending Weingarten rights to non-unionized employees, but reversed the decision only three years later when it concluded that Weingarten principles do not apply absent a unionized workforce.
Now, 15 years later, the Board has tossed aside its prior interpretation, and non-union employers must grapple with a new rule for their disciplinary process.
Organized labor may find the decision unpopular because the NLRB now has granted an important right to non-union employees that for at least the last 15 years has been extended only to unionized employees. Non-union employees now have the same right - without having to pay union dues - courtesy of the NLRB.
REMEMBER: KNOW YOUR RIGHTS & USE THEM!!
Earl Beatty is the Assistant Business Agent for Bus Operators and can be contacted at (301) 568-6899 ext. 8225 or firstname.lastname@example.org.