The rights of employees to have present a union
representative during investigatory interviews were
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 employee's
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.
(II) it can call off the interview or,
(III) 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 employee 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.
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Employee Can Specify Weingarten Representative**
The Fourth U.S. Circuit Court of Appeals recently held that, absent special circumstances, an employee or union, not the employer, has the right to select who will represent the employee during an employer’s investigation. See Anheuser-Busch, Inc. v. NLRB. As a result, the court concluded that the National Labor Relations Board (NLRB) correctly found the employer guilty of an unfair labor practice for violating the National Labor Relations Act (NLRA).
In this case, a manager began questioning an employee about an incident involving an independent contractor and the employee requested the presence and assistance of a particular shop steward (who was familiar with the incident) during the interview. Assuming that the requested shop steward was at lunch, the manager denied the employee’s request and instead called another shop steward. This steward, upon arrival, reiterated the employee’s request for the other shop steward. The manager again denied the request and the employee refused to answer any more questions about the incident. The next day, the employee met with a group of Anheuser-Busch managers and a Teamsters’ business agent. The managers questioned the employee after again denying his request for the assistance of the particular shop steward. The company subsequently disciplined the employee for his involvement in the investigated incident. The union then filed a charge with the NLRB, claiming the denial of the employee’s choice of union representative was an unfair labor practice.
The Fourth Circuit held that, in light of the U.S. Supreme Court’s ruling in NLRB v. Weingarten (which holds that an employee is entitled to union representation in an investigatory interview threatening discipline), the NLRB reasonably interpreted the NLRA in finding that an employee must, absent extenuating circumstances, be permitted to choose who will represent him during an employer’s investigation. The rationale is that an employer has no interest in who represents the employee during the investigation, whereas the employee does have such an interest. The court also reasoned that having the ability to choose particular representation helps rectify the inherent imbalance of power in the workplace.
The court also held that the NLRB’s interpretation was consistent with NLRB precedent and was not the adoption of a new standard. Accordingly, the case did not involve the retroactive application of a new rule.
