"Weingarten Rights"

(Union Representation During Investigatory Interviews)

 

 

A VITAL steward function is to prevent management from intimidating employees.  Nowhere is this more important than in closed-door meetings when supervisors or guards, often trained in interrogation techniques, attempt to induce employees to confess to mistakes or wrongdoing.

The NLRA gives employees the right to assistance from representatives during investigatory interviews.  Although though not explicit in the Act, the right was declared by the U.S. Supreme Court in 1975 in NLRB V. f Weingarten,Inc  The rules the Court announced are known as Weingarten rights.

Unions should encourage employees to assert their Weingarten rights.  The presence of a steward can help in many ways:

· The steward can serve as a witness to prevent super­visors from giving a false account of the conversations.

  The steward can object to intimidating tactics or con­fusing questions.

  The steward can, when appropriate, advise an em­ployee against blindly denying everything, thereby giving the appearance of dishonesty and guilt.

  The steward can help an employee to avoid making fatal admissions.

  The steward can warn an employee against losing his or her temper.

  The steward can raise extenuating factors.

 

What is an Investigatory interview?

        Weingarten rights apply 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 from what he or she says.  Investigatory interviews relate to such sub­jects as:

 

·      absenteeism

·      accidents

·      compliance with work rules

·      damage to company property

·      drinking

·      drugs

·      falsification of records

·      fighting

·      insubordination

·      lateness

·      poor attitude

·      poor work performance

·      sabotage

·      slowdowns

·      theft

·      violation of safety rules

 

Floor conversations. Not every discussion with management is an investigatory interview.  For example, a supervisor may speak to an employee about the proper way to do a job.  Even if the supervisor asks the employee questions, this is not an investigatory interview because the possibility of discipline is remote.

        A routine conversation changes character if a supervisor becomes dissatisfied with an employee's answers and takes a hostile attitude.  If this happens, the meeting becomes an investigatory interview and Weingarten applies.

  Disciplinary announcements.  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 a previously arrived-at decision. Such a meeting becomes an investigatory interview, however, if the supervisor asks questions that are related to the subject matter of the discipline.

 

Employee Rights

        Under the Supreme Court's Weingarten decision, when an investigatory interview occurs, these rules apply:

        ·  The employee may request union representation before or during the interview.

        ·  After the request, 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.

3.  Give the employee a choice of: (a) having the interview without representation  (usually a mistake) or (b) ending the interview.

If the employer denies the request for union represen­tation, and questions the employee, it commits an unfair labor practice and the employee may refuse to answer.

 

Steward Rights

        Supervisors sometime 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 wrong. The steward has the right to counsel the employ­ee during the interview and to assist the employee to present the facts.  Legal cases have established the fol­lowing rights and obligations:

·  When the steward arrives, the supervisor must inform the employee and the steward of the subject matter of the interview: for example, the type of misconduct which is being investigated. (The supervisor does not, however, have to reveal management's entire case)

·  The steward can take the employee aside for a private pre-interview conference before questioning begins.

·  The steward can speak during the interview. (But, the steward has no right to bargain over the purpose of the interview or to obstruct the interview.

·  The steward can interrupt to object to a question or request that the supervisor clarify a question so that the employee can understand what is being asked.

·  The steward can advise the employee not to answer questions that are abusive, misleading, badgering, confusing, or harassing.

·  When the questioning ends, the steward can provide information to justify the employee's conduct..

 

Educating Members

Employees sometime confuse the Weingarten rules with the Miranda rules. Under the U.S. Supreme Court's Miranda decision, police who question criminal suspects in custody must notify them of their right to remain silent and to have a lawyer present  Unfortunately, the Supreme Court did not impose similar requirements in its Weingarten decision.  Employers have no obligations to inform employees of their rights to union representa­tion.  This is the union's job.

       

        Unions should explain Weingarten rights at union meetings and in newsletters.  Consider distributing  wallet-sized cards say­ing the following:

 

        (If called to a meeting with management, read the fol­lowing to management or present the card before the meeting starts.)

 

        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.  Without representation present, I choose not to participate in this discussion.

 

 

NLRB Charges

        Failure to adhere to the Weingarten rules is an unfair labor practice.  NLRB charges should be filed if employers disre­gard requests for union assistance or interfere with stewards' rights.  Charges are not deferred unless the union has a Weingarten-rights clause in its contract.  Violations are rarely considered "de minimis".

 

 

QUESTIONS AND ANSWERS

 

1.  Request to attend meeting

Q.      I am a department steward.  If I see a worker being questioned in a supervisor's office, can I ask to attend the meeting?

A.  Yes.  A steward has a protected right to request admission to such a meeting.  If the meeting is rou­tine, the request can be denied.  But if the meeting is an investigatory interview, the employee must be allowed to indicate whether the steward's presence is desired.

 

2.  Coercing employee to drop request

Q.  An employee, summoned to an interview with his supervisor, asked for his steward.  In response, 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." Violation?

A.  Yes.  The supervisor is raising the specter of disci­pline to coerce the employee into abandoning his Weingarten rights.  This is an unfair labor practice.

 

3.  Can employee refuse to go to meeting?

Q.  An employee was ordered by her manager to go to the personnel office for a "talk" about her attendance.  She asked to bring her steward but the manager said she would have to make this request when she got to the office.  Can the employee refuse to go to the personnel office without her steward?

A.  No.  Weingarten rights do not arise until the inter­view begins.  The employee must go to the office and make her request to the person conducting the interview.  An employee can refuse to go to a meeting only if a supervisor makes clear in advance that union representation will be denied.

 

4.  Medical examination

Q.  Our company requires medical examinations for recalled employees out of work three months or more.  Do the employees have a right to a steward during the examination?

A.  No.  Medical examinations are not investigatory interviews.  Weingarten rights do not apply.

   

5.  Drug test

Q.  If management asks an employee to submit to a urine test for drugs, does Weingarten apply?

A.  Partly.  When no questioning takes place, a urine test is not an investigatory interview and an employee does not have a right to the presence of a steward, Management must, however, allow the employee to consult with a union representative to decide whether or not to take the test

   

6.  Counseling session

Q.  An employee was given a written warning for poor attendance and told she must participate in absence-coun­seling with the personnel department.  Does she have a right to a union steward at the counseling sessions?

A.  This depends on whether the employee has a fear that the counseling sessions could result in further dis­cipline.  For example, if notes from the sessions are kept in the employee's permanent record, or if other employ­ees have been disciplined for speaking up at counseling sessions, the employee's fears would be reasonable and would entitle her to steward. But if the personnel rep­resentative gives firm assurances that the meetings will not be used for further discipline, and promises that the conversations will remain confidential, Weingarten rights probably would not apply.

 

 

7.  Request for private attorney

Q.  Can a worker insist on the presence of an attorney before answering questions at an investigatory inter­view?

A.  No.  The Weingarten rules only provide for the assis­tance of union representative.

 

8.  Telephone interview

Q.  Over the weekend, a supervisor called a worker a home to ask questions about missing tools.  Did the worker have to answer the questions?

 

A.  No.  Weingarten rights apply to telephone interviews.  An employee who fears discipline can refuse to answer questions until he or she has a chance to consult with a union representative.

 

9.  Disciplinary announcement

Q.  An employee was called into the plant manager's office.  She asked for her steward, but her request was ignored.  The manager said, "Doreen, yesterday you violated a supervisor's order.  We are giving you a one-day suspension for insubordination."  Did the company violate Weingarten?

 

A.  No.  Weingarten rights do not apply to a meeting where an employer simply announces discipline.

 

10.  Investigation of steward

Q.  I am a steward.  If I am called in by my supervisor to discuss a problem with my work, can I bring my chief steward?

A.  Yes.  Stewards have the same Weingarten rights as other employees.  If you have a fear of discipline or other adverse consequences, you are entitled to assis­tance.

 

11.  Crew meeting

Q.  If management calls a meeting to lecture employees about job performance, do employees have a right to bring a union representative to the meeting?

A.  Not necessarily.  A meeting that does not involve interrogation is not an investigatory interview.  Weingarten rights do not apply unless management asks questions of employees in a manner that creates a rea­sonable fear of discipline.

   

 

12.  Can employee select a particular representative?

Q.  If an employee asks to be represented by her chief steward instead of her department steward, must man­agement comply?

A.  Yes.  If two representatives are equally available, an employee's request for a particular representative must be honored.

 

13.  Employee asked to inform on others

Q.  An employee was summoned to a meeting and asked about the involvement of other employees in illegal activities. Could he have insisted on the presence of 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 or doesn't say at the meeting could get him into trouble, he is entitled to rep­resentation