An employee may be represented by the union at an investigatory interview with his or her supervisor when the employee reasonably believes that the interview may lead to a disciplinary action.
U.S. Supreme Court ruling:
The rights of employees to the presence of union representatives during investigatory interviews was announced by the U.S. Supreme Court in 1975 in NLRB v. J. Weingarten, Inc. Since that case involved a clerk being investigated by the Weingarten Company, these rights have become known as Weingarten Rights.
What is an investigatory interview?
Employees have Weingarten rights only during investigatory interviews. An investigatory interview occurs when a supervisor questions an employee to obtain information which could be used as a basis for discipline or asks an 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. Investigatory interviews usually relate to subjects such as:
violation of safety rules
damage to state property
falsification of records
violation of work procedures
Under the Supreme Court’s Weingarten decision, when an investigatory interview occurs, the following rules apply:
The employee must make a clear request for union representation before or during the interview. The employee cannot be punished for making this request.
After the employee makes the request, the employer must choose from among three options. The employer must:
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.
If the supervisor denies the request for union representation and continues to ask questions, he or she commits an unfair labor practice. The employee should participate in the meeting “under protest”.
Rights of Stewards
Supervisors often assert that the only role of a steward at an investigatory interview is to observe the discussion, i.e., to be a silent witness. The Supreme Court, however, clearly acknowledged a steward’s right to assist and counsel workers during the interview. Decided cases establish the following procedures:
When the steward arrives, the supervisor must inform the steward of the subject matter of the interview; i.e., the type of conduct for which discipline is being considered (theft, lateness, drugs, etc.).
The steward must be allowed to take the worker aside for a private pre-interview conference before questioning begins.
The steward must be allowed to speak during the interview. The steward, however, does not have the right to bargain over the purpose of the interview.
The steward can request that the supervisor clarify a question so the worker can understand what is being asked.
After a question is asked, the steward can give advice on how to answer.
When the questioning ends, the steward can provide information to the supervisor.