Weingarten Rights

In 1975, in NLRB v. J. Weingarten, Inc, the U.S. Supreme Court defined the rights of employees in the presence of union representatives during investigatory interviews. Since that case involved a clerk being investigated by the Weingarten Company, these rights have become known as Weingarten rights.  In 2000, the NLRB extended those rights to non-union workplaces.

However, in 2004, in IBM Corp. and Kenneth Schult, the National Labor Relations Board (Board) reversed themselves and decided by a 3-2 vote that non-unionized employees are not legally entitled to have a coworker present during an investigatory interview that the employee reasonably believes might result in discipline.

One of the most vital functions of a Union steward 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 coerce employees into confessing to wrongdoing.

The Rules

Under the Supreme Court's Weingarten decision, when an investigatory interview occurs, 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. The Employer must either:

• 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.

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.

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

• The steward can help a fearful or inarticulate employee explain what happened. 
• The steward can raise extenuating factors. 
• The steward can advise an employee against blindly denying everything, thereby giving the appearance of dishonesty and guilt.  
• The steward can help prevent an employee from making fatal admissions. 
• The steward can stop an employee from losing his or her temper, and perhaps getting fired for insubordination.  
• The steward can serve as a witness to prevent supervisors from giving a false account of the conversation.

Note: the NLRB generally does not defer charges alleging a violation of Weingarten rights. Nor are violations considered de minimus even if no employee is disciplined.