The right of employees to have union representation at investigatory interviews was announced by the U.S. Supreme Court in a 1975 case (NLRB vs. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689). These rights have become known as the Weingarten rights.
Employees have Weingarten rights only during investigatory interviews. 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.
If an employee has a reasonable belief that discipline or other adverse consequences may result from what he or she says, the employee has the right to request union representation. Management is not required to inform the employee of his/her Weingarten rights; it is the employees responsibility to know and request.
When the employee makes the request for a union representative to be present management has three options:
(I) it can stop questioning until the representative arrives.
(2) it can call off the interview or,
(3) it can tell the employee that it will call off the interview unless the employee voluntarily gives up his/her rights to a union representative (an option the emplovee should always refuse.)
Employers will often assert that the only role of a union representative in an investigatory interview is to observe the discussion. The Supreme Court, however, clearly acknowledges a representative's right to assist and counsel workers during the interview.
The Supreme Court has also ruled that during an investigatory interview management must inform the union representative of the subject of the interrogation. The representative must also be allowed to speak privately with the employee before the interview. During the questioning, the representative can interrupt to clarify a question or to object to confusing or intimidating tactics.
While the interview is in progress the representative can not tell the employee what to say but he may advise them on how to answer a question. At the end of the interview the union representative can add information to support the employee's case.
On June 15, 2004, The National Labor Relations Board ruled by a 3-2 vote that employees who work in a nonunionized workplace are not entitled under Section 7 of the National Labor Relations Act to have a coworker accompany them to an interview with their employer, even if the affected employee reasonably believes that the interview might result in discipline.
This decision effectively reversed the July 2000 decision of the Clinton Board that extended Weingarten Rights to nonunion employees.
This clip and other educational info is posted under the educational link on www.uaw1268.com. We had also passed out cards with this information and it has been written in several of our Union Voice newsletters. If you have any information or questions that you would like to see addressed, please use the feedback link on the local website (education) and we will address it asap. Another good place to get info is the monthly membership meetings. We are always looking for insight on what the membership would like to see!
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.
What is an investigatory interview?
Employees have Weingarten rights only during investigatory interviews. 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. If an employee has a reasonable belief that discipline or other adverse consequences may result from what he or she says, the employee has a right to request union representation. Investigatory interviews usually relate to subjects such as:
absenteeism
drinking
fighting
poor attitude
violation of safety rules
accidents
drugs
insubordination
sabotage
work performance
damage to state property
falsification of records
lateness
theft
violation of work procedures
Weingarten 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:
a. Grant the request and delay questioning until the union representative arrives and has a chance to consult privately with the employee; or
b. Deny the request and end the interview immediately; or
c. Give the employee a choice of: (1) having the interview without representation or (2) ending the interview.
RULE 3
If the supervisor denies the request for union representation and continues to ask questions, he or she commits an unfair labor practice and the employee has the right to refuse to answer. The supervisor cannot discipline the employee for such a refusal.
Rights of Stewards
Supervisors often assert that the only role of a steward at an investigatory interview is to observe the discussion, i.e., 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:
1. When the steward arrives, the supervisor must inform the steward of the subject matter of the interview; i.e., the type of conduct for which discipline is being considered (theft, lateness, drugs, etc.).
2. The steward must be allowed to take the worker aside for a private pre-interview conference before questioning begins.
3. The steward must be allowed to speak during the interview, but cannot insist that the interview be ended.
4. The steward can request that the supervisor clarify a question so the worker can understand what is being asked.
5. After a question is asked, the steward can give advice on how to answer. The steward can advise the employee not to answer questions that are abusive, misleading, badgering, or harassing.
6. When the questioning ends, the steward can provide information to the supervisor.
Last edited by BrianLaws on Mon Nov 12, 2007 2:18 pm; edited 1 time in total
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.
I'd like to state that to be safe, ALWAYS REQUEST a union rep anytime before an investigatory interview with any form (labor, HR or your supervisor) of management. I'm NOT being paranoid, TRUST ME!
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