Weingarten Rights*
(UNION REPRESENTATION DURING
INVESTIGATORY INTERVIEWS)
Unions
should educate their members about the advantages of having a steward present
at an investigatory interview. These include the ability of the steward to:
• serve
as a witness to prevent a supervisor from giving a false account of the conversation;
• object to
intimidation tactics or confusing questions;
• help an employee to avoid making fatal
admissions;
• advise
an employee, when appropriate, against denying everything, thereby giving the
appearance of dishonesty and guilt;
• warn an employee against losing his or
her temper;
• discourage an employee from informing on
others; and
• raise extenuating factors.
WHAT IS AN INVESTIGATORY INTERVIEW?
Weingarten
rights apply only
during investigatory interviews. An investigatory interview occurs when:
(1) Management
questions an employee to obtain information; and
(2) The
employee has a reasonable belief that discipline or other adverse
consequences may result. For example, an employee questioned about an
accident would be justified in fearing that she might be blamed for it. An employee questioned about poor work would have a
reasonable fear of disciplinary action if he should admit to making errors.
Shop-floor conversation
Not every
discussion with management is an investigatory interview. For instance, a
supervisor may speak with an employee about the proper way to do a job. The
supervisor may even ask questions. But because the likelihood of discipline is
remote, the conversation is not an investigatory interview.
A
shop-floor conversation can change its character, however. If the supervisor’s
attitude becomes hostile and the meeting turns into an investigatory interview
the employee is entitled to representation.
Disciplinary announcement
When a
supervisor calls an employee to the office to announce a warning or other
discipline, is this an investigatory interview? The NLRB says no, because the
supervisor is merely informing the employee of an already-made decision. Unless
the supervisor asks questions about the employee’s conduct, the meeting is not
investigatory.
EMPLOYEE RIGHTS
Under the
Supreme Court’s Weingarten decision, the following rules apply to
investigatory interviews:
• The
employee can request union representation before or at any time during the
interview.
• When
an employee asks for representation, the employer must choose from among three
options:
1. Grant
the request and delay questioning until the union representative arrives;
2. Deny the
request and end the interview immediately; or
3. Give the
employee a choice of:
(a) having
the interview without representation or
(b) ending
the interview.
• If
the employer denies the request for union representation and continues the
meeting, the employee can refuse to answer questions.
STEWARD RIGHTS
Employers
sometimes assert that the only function of a steward at an investigatory
interview is to observe the discussion; in other words, to be a silent witness.
This is incorrect. The steward must be allowed to advise and assist the
employee in presenting the facts. When the steward arrives at the meeting:
• The
supervisor or manager must inform the steward of the subject matter of the
interview: in other words, the type of misconduct being investigated.
• The
steward must be allowed to have a private meeting with the employee before
questioning begins.
• The
steward can speak during the interview, but cannot insist that the interview be
ended.
• The
steward can object to a confusing question and can request that the question be
clarified so that the employee understands what is being asked.
• The
steward can advise the employee not to answer questions that are abusive,
misleading, badgering, or harassing.
• When
the questioning ends, the steward can provide information to justify the
employee’s conduct.
EDUCATING MEMBERS
Employees
sometime confuse Weingarten rights with Miranda rights. Under the
Supreme Court’s Miranda decision, police who question criminal suspects
in custody must notify them of their right to have a lawyer present. The
Supreme Court did not impose a similar requirement in Weingarten. An
employer does not have to inform an employee that he or she has a right to
union representation.
Unions
should explain Weingarten rights to members in newsletters and at union
meetings. Consider distributing wallet-sized cards such as the following:
WEINGARTEN CARD
(If
called to a meeting with management, read the
following or present this card to management when the meeting begins)
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
this meeting. Until
my representative arrives, I choose not to participate in this discussion.
NLRB CHARGES
An
employer’s failure to comply with a worker’s request for union representation,
or a violation of any other Weingarten right, is an unfair labor
practice. Unless a grievance is pending on the matter, the NLRB does not defer Weingarten
charges.
QUESTIONS AND ANSWERS
STEWARD’S REQUEST
Q. If I see a worker being questioned
in a supervisor’s office, can I ask to be admitted?
A. Yes. A steward has a right to insist on
admission to a meeting that appears to be a Weingarten interview. If the
interview is investigatory, the employee must be allowed to indicate whether he
or she desires the steward’s presence.
COERCION
Q. An employee, summoned to a meeting
with her supervisor, asked for her steward. The supervisor said, “You can
request your steward, but if you do, I will have to bring in the plant manager
and you know how temperamental she is. If we can keep it at this level, things
will be better for you.” Is this a Weingarten violation?
A. Yes. The supervisor is raising the specter
of increased discipline to coerce an employee into abandoning her Weingarten
rights.
CAN EMPLOYEE REFUSE TO GO TO
MEETING?
Q. A supervisor told an employee to
report to the personnel office for a “talk” about his attendance. The employee
asked to see his steward but the supervisor said no. Can the employee refuse to
go to the office without seeing his steward first?
A. No. Weingarten rights do not arise
until an investigatory interview actually begins. The employee must make a
request for representation to the person conducting the interview. An employee
can only refuse to go to a meeting if a supervisor makes clear in advance that
union representation will be denied at the interview.
MEDICAL EXAMINATION
Q. Our employer requires medical
examinations when workers return from medical leaves. Can an employee insist on
a steward during the examination?
A. No. A run-of-the-mill
medical examination is not an investigatory interview.
LIE DETECTOR TEST
Q. Do Weingarten rights apply to
polygraph tests?
A. Yes. An employee has a right to union
assistance during the pre-examination interview and the test itself.
SOBRIETY TEST
Q. If management asks an employee if
he will submit to a test for alcohol, does Weingarten apply?
A. Yes. The employee must be allowed to
consult with a union representative to decide whether or not to take the test.
LOCKER SEARCH
Q. If a guard orders an employee to
open a locker, can the employee insist on a steward being present?
A. No. A locker search is not an
investigatory interview.
COUNSELING SESSION
Q. An employee was given a written
warning for poor attendance and told she must participate in counseling with
the human relations department. Does she have a right to a union steward at the
counseling sessions?
A. This depends. If notes from the sessions
are kept in the employee’s permanent record, or if other employees have been
disciplined for what they said at counseling sessions, an employee’s request
for a steward would come under Weingarten. But if management gives a firm assurance
that the meetings will not be used for discipline, and promises that the
conversation will remain confidential, Weingarten rights would probably
not apply.
PRIVATE ATTORNEY
Q. Can a worker insist on a private
attorney before answering questions at an investigatory interview?
A. No. Weingarten only guarantees the
presence of a union representative.
TELEPHONE INTERVIEW
Q. Over the weekend, a supervisor
called a worker’s home to ask about missing tools. Did the worker have to answer
the questions?
A. No. Weingarten applies to
telephone interviews. An employee who fears discipline can refuse to answer
questions until the employee has a chance to consult with a union
representative.
STEWARD OUT SICK
Q. If a worker’s steward is out sick,
can the worker insist that a Weingarten interview be delayed until the steward
returns?
A. Usually, no. Management does not have to
delay an investigation if another union representative is available to assist
the employee.
INTERROGATION OF A STEWARD
Q. If a steward is called in by
supervision to discuss her work, can she insist on the presence of another steward?
A. Yes. Stewards have the same rights to
assistance as other employees.
SHOP MEETING
Q. When management calls a meeting to
go over work rules, do employees have a right to demand a union representative?
A. No. Weingarten rights do not arise
unless management asks questions of an investigatory nature.
REMEDIES
Q. If management rejects a worker’s
request for union assistance at an investigatory interview, induces him to
confess to wrongdoing, and fires him, will the NLRB order the worker reinstated
because of the Weingarten violation?
A. No. The NLRB considers reinstatement to be
an unwarranted “windfall” for an employee who confesses to serious misconduct.
The usual Weingarten remedy is a bulletin-board posting in which the
employer acknowledges that it violated the Weingarten rules and promises
to obey them in the future.
NOTE: The remedy is different when an
employee is discharged for requesting a steward or refusing to answer questions
without one. In such cases, the NLRB orders reinstatement with back pay. A
make-whole remedy is also imposed if an employee is demoted, is transferred, or
loses privileges because of a request for union representation.
RECORDING THE INTERVIEW
Q. Can a supervisor tape record an
investigatory interview?
A. This depends. The Weingarten decision
itself does not forbid an employer from tape recording an investigatory
interview. But, if this represents a new policy on the part of the employer,
the steward can object on the grounds that the union did not receive prior
notice and an opportunity to bargain.
PARTICULAR REPRESENTATIVE?
Q. If an employee asks to be
represented by her chief steward instead of her departmental steward, must
management comply?
A. Usually, yes. If two representatives are
equally available, an employee’s request for a particular representative must
be honored.
QUESTIONS ABOUT OTHERS
Q. If a worker is summoned to a
meeting and asked about the role of other employees in illegal activities, can
he insist on assistance from a union representative?
A. Yes. Although the employee may not be
involved in wrongdoing himself, he risks discipline if he refuses to inform on
others or admits that he was aware of illegal activities. Because what he says
at the meeting could get him into trouble, he is entitled to union
representation.
OBSTRUCTION
Q. The company is interviewing
employees about drug use in the plant. If I tell my people not to answer
questions, could management go after me?
A. Yes. A union representative may not
obstruct a legitimate investigation into employee misconduct. If management
learns of such orders, you could be disciplined.
*excerpt
from The Legal Rights of Union Stewards by Robert M Schwartz