Center for Labor Education & Research
University of Hawai‘i - West O‘ahu
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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
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.
From NLRA Basics presented at 2006 ABA Annual Meeting (Honolulu, August 5-8, 2006)
Right to Union Representation & Role of Union Representation In Disciplinary Actions
In NLRB v. Weingarten, Inc., the U.S. Supreme Court held that an employee has the right under the National Labor Relations Act (NLRA) to union representation at an investigatory interview which the employee reasonably believes may result in disciplinary action. NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).
1. When is Protection Afforded?
Protection under Weingarten is afforded when an employee reasonably believes that disciplinary action may be the result of his/her meeting with the employer's representative in an investigatory interview and where the employee requests representation.
a. What is a "reasonable" belief is measured by objective standards, not the subjective motivations of the employee, based upon a reasonable evaluation of all the surrounding circumstances.
b. An employee can participate in an interview without a representative if he/she foregoes his/her right to request one.
c. Ordinarily, once a valid request for union representation is made, the burden is on the employer to either grant the request or offer the employee the choice between continuing the interview unaccompanied by a union representative or having no interview at all.
d. An employer has no obligation to continue with an investigative interview once union representation is requested. It does not have to justify its refusal and can continue its investigation without questioning the employee and the employee then foregoes any benefits that may be derived from participating in an interview.
2. What Role Does the Union Representative Play?
a. The representative's role is to assist the employee and the representative may do so "by attempting to clarify the facts or suggest other employees who may have knowledge of them." Weingarten, 420 U.S. 251 (1975).
b. A representative oversteps his/her bounds in instructing an employee not to answer a question or questions during an interview. An employer may "eject" a representative who engages in such behavior because "it is within an employer's legitimate prerogative to investigate employee misconduct in its own facilities without interference from union officials." Weingarten, 420 U.S. 251 (1975).
Employer lawfully denied employee's request for co-worker representative to accompany him during investigative interview, where employees, who were not union-represented, were not entitled to co-worker representative. —Publix Super Markets Inc. (347 NLRB No. 124) 180 LRRM 1480 .
Employer violated Sec. 8(a)(1) when its supervisor refused to allow union representative attending predisciplinary interview to speak on behalf of employee facing discipline, where supervisor's statements at beginning of meeting limited role of union representative to that of observer, and statements were not ambiguous. —U.S. Postal Service (347 NLRB No. 89) 180 LRRM 1495 .
Employer unlawfully denied union representation to two employees at grievance meetings by permitting union representative to attend but prohibiting him from actively assisting employees, where meetings were predisciplinary investigatory meetings and did not involve imposition of predetermined discipline, and thus principles of NLRB v. Weingarten, apply to these meetings. —Washoe Medical Center Inc.. (348 NLRB No. 22) 180 LRRM 1502 .
Employer unlawfully refused to permit employee who was union steward to speak with union representative before investigatory interview and when it failed to notify him or union representative of disciplinary charges before such interview, where, among other things, collective-bargaining agreement required employer to provide notice of disciplinary charges prior to investigatory interview. —U.S. Postal Service (345 NLRB No. 26) 178 LRRM 1213 .