An Employee's Right to Representation
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 regarding the presence of union representatives during investigatory interviews were 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.
Q: What foundations are Weingarten rights based upon?
Weingarten rights based upon three sources of law: (1) section 7 of the National Labor Relations Act, which gives employees the right to act concertedly for their mutual aid and protection; (2) the United
States Supreme Court, which has endorsed Weingarten rights for unionized employees, and (3) the
National Labor Relations Board, which currently endorse Weingarten rights for both union and nonunion employees.
Q: Is it a violation to discipline an employee for invoking his/her Weingarten rights?
Yes. It is a violation of the National Labor Relations Act to discipline an employee for invoking his/her
Weingarten rights. Similarly, it is a violation for an employer to discipline an employee for refusing to waive his/her Weingarten rights, i.e. participate in the interview without representation.
Q: Do Weingarten rights apply automatically?
No. The employee must request the representation.
Q: Is Management obligated to remind me of my Weingarten rights prior to an investigatory meeting?
No, you must request a Steward's presence. Management has no obligation to remind you of your right.
Q: Can I have a Shop Steward present at any meeting I have with Management?
No, only when you have a reasonable belief that discipline will result from an investigatory meeting.
Q: What is an investigatory interview?
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.
Q: What if I'm told to be in my Supervisor's office at 10am but I do not know the nature of the meeting?
You have the right to know beforehand what the subject of the discussion will be. And, you have the right to consult (caucus) with your Steward before and during the meeting.
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Q: What if a routine work meeting is taking place between my Supervisor and me, but the nature of the meeting suddenly changes?
You have the right to request Steward at the point you believe you are being asked questions which could result in discipline. You cannot be punished for requesting a Steward's presence.
Q: If I request a Steward, does the Employer have to comply?
The Employer must choose from among three options:
1. Grant the request and delay questioning until the Steward arrives and has a chance to consult privately with the employee; or
2. Deny the request and end the interview immediately; or
3. Give the employee a choice of having the interview without representation.
Q: What if a Supervisor denies my request for a Steward?
If you are denied a steward's presence and are still asked questions, the Employer commits an unfair labor practice and the employee has a right to refuse to answer. The supervisor cannot discipline the employee for such a refusal.
Q: What remedies are available to an employee whose Weingarten rights have been violated?
Full make-whole remedies, including reinstatement and back-pay, are available to an employee whose
Weingarten rights have been violated. Where disciplinary action is taken against an employee based on information obtained apart from said interview, though, make-whole remedies may not be applicable.
In an Investigatory Interview a steward has the ability to:
 serve as a witness to prevent a supervisor from giving a false account of the conversation (take notes during the meeting);
 object to the intimidation tactics or confusing questions;
 help an employee to avoid making fatal admissions;
 advise an employee, when appropriate, against denying everything, thereby giving the appearance of dishonesty and guilt;
 warn the employee against losing his or her temper;
 discourage an employee from informing on others; and
 raise extenuating factors.
 The supervisor or manager must inform the steward of the subject matter of the interview: in other words, the type of misconduct being investigated.
 The steward must be allowed to have a private meeting with the employee before questioning begins.
 The steward can speak during the interview, but cannot insist that the interview be ended.
 The steward can object to confusing or harassing questions and can request that the question be clarified so that the employee understands what is being asked.
 The steward can advise the employee not to answer questions that are abusive, misleading, badgering, or harassing.
 When questioning ends, the steward can provide information to justify the employee’s actions.
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