In 1975, the United States Supreme Court in the case of NLRB v. J. Weingarten, Inc. 420 U.S. 251 (1975) upheld a National Labor Relations Board (NLRB) decision that employees have a right to union representation at investigatory interviews. It held that employees in unionized workplaces have the right under the National Labor Relations Act to the presence of a union steward during any management inquiry that the employee reasonably believes may result in discipline. These rights have since become known as the Weingarten Rights. During an investigatory interview, the Supreme Court ruled that 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:
1. Grant the request and delay questioning until the union representative arrives and (prior to the interview continuing) the representative has a chance to consult privately with the employee
2. Deny the request and end the interview immediately
3. Give the employee a clear choice between having the interview without union representation or 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.
Q: What triggers the right to have union representation present?
A: Four conditions must be met before an employee’s Weingarten rights are triggered: A management representative must seek to question the employee. The questioning must be in connection with an investigation. The employee must reasonably believe that the interview may result in disciplinary action against the employee. The employee must request union representation.
Q: Under what circumstances could an employee reasonably believe that the interview may result in disciplinary action?
A: A purely investigatory meeting held to inquire into suspected misconduct would qualify. On the other hand, if management has called a meeting simply to issue or inform the employee of discipline, the employee has no Weingarten rights. If the purpose of the interview is not clearly at either end of this spectrum, but there is any investigatory purpose or any potential for eliciting information that may result in employee discipline, then Weingarten rights likely apply and, in order to protect its investigation, an employer should honor them.
Know Your Rights! Weingarten Rights are use them or lose them!