Education Corner:
Do You Know Your Weingarten Rights?

If you’ve been asked to meet with your supervisor and think you could be disciplined, did you know you have a right to have a union representative there with you? This is thanks to your Weingarten Rights.

In the 1970s, the U.S. Supreme Court upheld a decision by the National Labor Relations Board, involving J. Weingarten Inc., which found that employees had a right to union representation in a meeting with management if the employee had a reasonable belief that the meeting might result in discipline. Subsequent decisions by the Supreme Court have helped develop what are referred to as Weingarten Rights. We’ve pulled together a primer on Weingarten Rights, including some possible scenarios, to help you better understand what your rights are.

Weingarten Rights (from the SEA Steward’s Manual)

In the case of NLRB v. J. Weingarten, Inc. 420 U.S. 251 (1975), the United States Supreme Court held that an employee has the right to union representation in a meeting with management, if the employee has a reasonable belief that the meeting may result in discipline. This right has been further developed through subsequent Supreme Court decisions, creating a set of employee rights which have come to be called “Weingarten Rights.”

As a steward, you must inform and educate your members about these rights. It is important for them to understand and remember these rights.  Management has no obligation to mention of remind and employee of their Weingarten rights. If an employee does not ask for union representation, they are essentially waiving their right to it.

Weingarten Rights do not apply during a supervisory review of the employee’s work.

In regard to investigatory interviews, employers often assert that the only role of union representatives is to observe and, if the representative chooses, take notes.  This is not true.  The union representative must be allowed to advise and assist the employee.

As the SEA representative (steward), your basic rights during an investigatory interview follow:

1.  The supervisor or manager must inform the steward of the subject matter of the interview – they must disclose the type of misconduct or violation being investigated.

2.  The steward must be allowed to have a private meeting with the employee before questioning begins.  It also may be possible to “caucus” for private meetings during the interview.

3.  The steward may speak during the interview, but cannot end the interview.

4.  The steward may object to a confusing question and may request clarification of the question. It is important that the employee understands what is being asked.

5.  The steward cannot advise the employee to refuse to answer questions.  However, the steward can advise the employee not to answer questions that are abusive, misleading, badgering, or harassing.

6.  When the questioning ends, the steward can choose to provide management with information explaining or justifying the employee’s conduct. Always discuss this possibility with the employee before the meeting.

Possible scenarios

During a meeting with her supervisor, an employee suddenly feels as though she is being investigated.  At that point she asks for her steward.  Is it too late?

An employee can request union representation at any point during the meeting.  The request must be granted if the employee has a reasonable belief that the meeting could lead to discipline.

You see an employee being questioned in a supervisor’s office.  Can you ask to be admitted?

Yes.  A steward has the right to insist on admission to a meeting which appears to be a Weingarten interview.  If the employee does not want you there, caucus with them and explain why they should have you there.  However, the final choice is the employee’s.

An employee requests union representation and is told, “I was going to try to keep this between us, but now that you’ve asked for the union, I have to call the personnel director and you’ll be in deeper trouble.”  Is this allowed?

No.  The employee is being coerced into waiving their rights.  This is an Unfair Labor Practice and may also be a grievable offense.

Management asks an employee to submit to a sobriety test.  Does Weingarten apply?

Yes.  If requested, the employee must be allowed to consult with the union first.

A supervisor calls an employee at home to ask questions.  Does Weingarten apply?

Yes.  An employee, who reasonably believes discipline may result, can refuse to answer questions until they are properly represented by a union steward.

An employee insists on consulting with a private attorney before being subjected to an investigatory meeting?

They do not have this right.  Under Weingarten, they are only guaranteed the presence of a union representative.

Management tells an employee they must use a particular steward?

The choice of steward is generally up to the employee, as long as more than one steward is reasonably available.

A steward is being questioned?

Union stewards also have Weingarten Rights.  They can request the presence of another steward.

An employee asks for a union steward in an investigatory meeting, and management refuses?

The employee can refuse to answer questions, but must sit through whatever meeting management wants to have. However, the employee may be taking a risk that management will discipline them for refusing to answer. It may be the best option for the employee to protest, but answer questions under protest only, and grieve the whole thing later. This choice will vary from case to case. They should take lots of notes, and point out to management that they are violating the law and the CBA.  Immediately after the meeting they should contact their union steward.

An employee refuses to answer questions in an investigatory meeting, even with a union steward there?

That employee could be disciplined for it.  You should tell them ahead of time not to refuse to answer legitimate questions, but also not to volunteer additional information.

An employee is called in to the office to inform on other employees?

That person arguably could be able to invoke Weingarten, because they could potentially be disciplined if they refuse to provide the information management is seeking.  However, law in New Hampshire is uncertain in this regard. Management generally has the right to conduct, investigate, and obtain relevant information from employees who themselves are not being disciplined, without those employees being able to assert Weingarten rights.

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