"Weingarten rights" derive from a 1975 Supreme Court case, NLRB v. J. Weingarten, Inc. Essentially, they give an employee the right to request assistance from union representatives during investigatory interviews, so that a steward may prevent management from coercing an employee into confessions of misconduct (either through threatening behavior or through skilled interrogation techniques). The union steward can:
- Serve as a witness to the actual content of the investigation.
- Object to intimidating tactics or confusing questions.
- Help an employee avoid making "fatal admissions."
- Advise an employee, when appropriate, against denying everything, and thereby giving the appearance of guilt or dishonesty.
- Counsel an employee against losing her/his temper.
- Discourage an employee from informing on others.
- Raise extenuating factors.
Weingarten rights apply only in investigatory interviews -- that is, when management questions an employee to obtain information and the employee has a reasonable belief that discipline (or other negative consequences) may result. The courts have found that it is not an investigatory meeting if an employee is called in to a supervisor's office merely to be informed of a disciplinary decision --the decision to discipline the employee has already been made. However, if the supervisor asks additional questions about the employee's conduct, the meeting becomes an investigatory interview.
The employee may request union representation before, or at any time during, the interview. SAMPLE REQUEST FOR REPRESENTATION: "If this discussion could in anyway lead to my being disciplined or terminated, or affect my personal working conditions, I request that my union representative be present at this meeting. Until my representative arrives, I choose not to participate in this discussion." At that point, the employer must:
- Grant the request and delay questioning until the steward arrives or
- Deny the request and end the interview immediately or
- Give the employee the choice of having the interview without representation or ending it immediately.
If the employer denies the request for union representation and continues the meeting, the employee has the legal right to refuse to answer questions. However, it is a good idea to phrase the refusal in such a way that it cannot be interpreted as insubordination -- for example, by saying that you are willing to write down management's questions and respond once you've spoken to a union representative. Employers sometimes assert that the steward's only function in these meetings is to observe the discussion (be a "silent witness"), but this is not the case. The steward is also allowed to advise and assist the employee in presenting the facts. Once the steward arrives:
- The employer must inform the steward of the subject of the interview (the type of misconduct being investigated).
- The steward must be allowed to meet privately with the employee before questioning begins.
- The steward may speak during the interview, but cannot insist that the interview be ended.
- The steward may object to confusing questions and request for clarification (so that the employee understands what s/he is being asked).
- The steward may advise the employee not to answer questions that are abusive, misleading or harassing.
- When the questioning ends, the steward can provide information to justify the employee's conduct.
The employer is under no obligation to inform employees of their right to representation. You lose your Weingarten rights if you do not assert them.