EMPLOYERS
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KNOW YOUR WEINGARTEN RIGHTS
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.
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:
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.
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.
Weingarten FAQs
Weingarten Rights do not apply to non-union employees.
Q If a steward sees a worker being interviewed in a supervisor's office, can she demand to attend the meeting?
Yes. A steward has a protected right to demand admission to a Weingarten interview. However, once the request is made, the employee being interviewed must indicate a desire for the steward’s presence. If the employee states that he or she wishes to be interviewed alone, the steward must leave.
Q An employee was summoned to an interview with his foreman and asked for his steward. In response, the foreman said, "You can request you 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 the level we're at, things will be a lot better for you." Is this a violation?
Yes. The foreman is threatening greater discipline to coerce the employee into abandoning his Weingarten rights. This is an unfair labor practice.
Q An employee was ordered by his foreman to go to the personnel office for a "talk" about his attitude. He asked to bring a union representative but the foreman said he would have to make his request when he got to the office. Can he refuse to go to the office?
No. Weingarten rights do not begin until the actual interview begins. The employee must go to the office and repeat his request to the official conducting the interview. Only if a supervisor makes clear in advance to an employee that he or she intends to conduct an investigatory interview without union representation, does an employee have a right to refuse to go to the meeting.
Q The company is recalling workers from a layoff and is insisting on medical examinations for those out of work three months or more. Can the workers demand a steward's presence during the examination?
No. Medical examinations are not investigatory interviews. Weingarten rights do not apply.
Q Does Weingarten apply to a polygraph examination?
Yes. An employee has a right to union representation during the pre-examination interview and the examination itself.
Q If management asks a worker to submit to a urine test for drugs, does Weingarten apply?
Yes and No. Since a urine test is not questioning, an employee does not have a right to the presence of a steward during the actual test. Management must, however, allow the employee to consult with a union representative to decide whether or not to take the test.
Q Can management order a worker to open a locker without a steward being present?
Yes. Locker searches, car searches, or handbag searches are not interviews. Employees do not have a right to insist of the presence of a steward.
Q An employee was given a written warning about poor attendance and told he must participate in absence counseling sessions with a member of the personnel department. Does the worker have a right to demand the presence of a union steward at the counseling sessions?
Yes and No. This depends on whether the employee has a reasonable fear that the counseling sessions could result in further discipline. If notes from the sessions are kept in the employee's permanent record, or if other employees have been disciplined after counseling sessions, the employee's fears would be reasonable and would entitle him to bring a steward. But if the employer gives firm assurances that the meetings will not be used for further discipline and promises that the conversations will remain confidential, Weingarten probably would not apply.
Q If a worker is given a warning slip for misconduct and is asked to sign the slip to acknowledge receipt, must the employer permit her to consult her steward before signing?
No. Since the employer is not questioning the worker, Weingarten rights do not apply.
Q Can a worker insist on the presence of a lawyer before answering questions at an investigatory interview?
No. Weingarten rights apply only to the presence of union representatives
Q Over the weekend, a foreman called a worker at home to ask questions about missing tools. Did the worker have to answer the questions?
No. Weingarten rights apply to telephone interviews. A worker who fears discipline can refuse to answer questions until he or she has a chance to consult with her steward.
Q A worker was called into the plant manager's office. She asked for her steward, but was refused. The manager said, "Doreen, yesterday you refused a direct order to work overtime. Therefore, we're giving you a one-day suspension for insubordination." Did the company violate Weingarten?
No. Weingarten rights do not apply to meetings where employers simply announce discipline. However, if the employer starts asking questions or tries to make the employee admit guilt, Weingarten would apply and the employee can insist on the presence of a steward or other union representative before answering.
Q If a worker's steward is out sick, can the worker insist that the interview be delayed until the steward is available?
No. Management does not have to delay an investigation if other union representatives are available to assist the employee at the interview.
Q If my foreman calls me in to discuss my work record, do I have the right to a union representative?
Yes. Union stewards have Weingarten Rights. If you fear discipline or other adverse action, you have the right to the presence of a union representative.
Q Suppose a worker's request for a steward is denied. If the supervisor continues to ask questions, can the worker walk out of the office to get a steward?
In some cases, yes. According to NLRB decisions, when an employee is entitled to union representation and the employer denies the employee's request, the employee can refuse to participate in the interview, even to the point of walking out to seek a union representative. However, if the employee is told to wait while management gets the steward, the employee must stay in the office until the steward arrives.
Q If the company calls a meeting to lecture workers about job performance, do the employees have a right to demand the presence of a union representative before attending the meeting?
No. Holding a meeting on work time that does not involve interrogation is not a Weingarten meeting. There is no right to a steward unless the employer begins asking questions of employees in a manner that creates a reasonable fear of discipline.
Educating Workers
You may be familiar with the "Miranda warnings" given by police. The Miranda warnings notify criminal suspects of their rights, including the right to a lawyer and to remain silent. Unfortunately, the Supreme Court did not impose a notice requirement in its Weingarten decision. Employers have no obligation to inform workers of their right to request union representation. This is the Union's job.
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"If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working condition, I respectfully request that my union representative, officer, or steward be present at the meeting. Without representation, I choose not to answer any questions."
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Employers often assert that the only role of a steward at an investigatory interview is to observe the discussion, in other words 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:
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When the steward arrives, the supervisor must inform the steward of the subject matter of the interview, i.e. the type of misconduct 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. However, the steward does not have the right to bargain over the purpose of the interview.
· The steward can request that the supervisor clarify a question so that 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 additional information to the supervisor.
· It must be emphasized that if the Weingarten rules are complied with, stewards have no right to tell workers not to answer questions, or to give false answers. Workers can be disciplined if they refuse to answer questions.
