Forty-four years ago yesterday, the U.S. Supreme Court issued its decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). The case granted important labor law rights to employees when they believe an interview of meeting at work could reasonably lead to them being disciplined.
What are Weingarten Rights?
Weingarten rights are actually quite easily stated but like most things, it is the factual edges and the application to each case, which creates the issues in understanding. Weingarten rights allow employees to have Union representation during any interview or meeting with management that the employee reasonably believes could lead to discipline or discharge from employment.
How Does an Employee Invoke Their Weingarten Rights?
If an employee believes that an interview or meeting with management representatives could lead to discipline, it is incumbent upon the employee to clearly state they are requesting union representation in the interview. If the employee does not request union representation before or during the meeting, the employee is not entitled to have union representation present. Management is not required to inform an employee of her Weingarten rights. Thus, an employee must know that she has the right to union representation and she must clearly invoke her rights.
Many labor unions provide their members with a standard statement that is effective in invoking their Weingarten rights. This statement is usually something along the lines of “if this meeting could in any way lead to me receiving discipline or being discharged from my employment, I request my Union representative attend this meeting. I choose not to answer any questions without my union representative present.”
One other interesting point is that the employee is entitled to have the union representative of her choosing in the interview so long as that representative is reasonably available. If no union representative is not available, the employer must wait to conduct the interview. Super Valu Xenia, 236 N.L.R.B. 1095 (1978). An employee is also permitted to choose another union member–even if not a designated representative or steward–to represent her if she so chooses. Crown Zellerbach, Inc., 239 N.L.R.B. 1124 (1978).
What Happens When an Employee Invokes Her Weingarten Rights?
Once an employee invokes her right to union representation before or during an interview or meeting with management, the management representatives have three choices, which are:
- Postpone the investigatory interview until the employee’s Union representative can be made available to attend the interview;
- Deny the employee’s request to have her union representative present in the interview and stop the investigatory interview; or
- Provide the employee the choice of either having the interview without her union representative present or ending the interview
See United States Postal Service, 241 U.S. 141 (1979)
What Happens if Management Refuses the Employee’s Request for Union Representation?
If the management representatives deny the employee’s request for union representation in the investigatory interview but choose to continue asking the employee questions, management has violated the National Labor Relations Act. This violation of the NLRA is an unfair labor practice that can be remedied through a charge filed with the National Labor Relations Board (NLRB).
If management proceeds with asking questions and refuses the employee’s request for union representation, the employee can refuse to answer management’s questions. If the employee refuses to answer questions, she cannot be disciplined for doing so. The employee cannot, however, leave the interview of her own accord. She must remain in the interview until the management representatives choose to end the interview.
What Can a Union Representative do in an Investigatory Interview?
First and foremost, an employer cannot tell the union representative that they are merely a “fly on the wall” or there to “be seen and not heard.” If an employer requires a union representative to remain silent in an interview, the employer violates Weingarten.
In addition to not being prevented from speaking, a union representative has the right to ask management what the interview is about prior to the interview beginning. The union representative is permitted to have sidebars with the employee. A union representative can ask management to clarify any question asked in order to ensure the employee fully understands the question before answering. The union representative also has the right to give the employee advice on how to answer management’s questions.
One thing that a union representative cannot and should not do is tell an employee not to answer any of management’s questions. If an employee refuses to answer management’s questions, even if directed to do so by a union representative, the employee will likely be disciplined by the employer.
If an Employer Violates Weingarten, What Remedies are Available From the NLRB?
If an employer violates an employee’s Weingarten rights, the NLRB can remedy the violation through an unfair labor practice charge and complaint. If an employer violated an employee’s Weingarten rights, the NLRB will certainly order the employer to post a notice stating it violated its employee’s rights.
The remedies concerning discipline are trickier when it comes to a Weingarten violation. Any discipline the employer ordered because an employee requested her union representative will be overturned but any discipline the employee received for reasons outside her invocation of her Weingarten rights, will not be overturned. In other words, an employee cannot escape discipline for some act committed before the interview (presumably for which the interview was called) simply because the employer violated Weingarten in that interview.
