WEINGARTEN RIGHTS

The Following is Taken from the IAEP Website:

Know Your Weingarten Rights

Rights of Stewards During "Weingarten” Interviews

Your Weingarten Rights: What They Are and How To Use Them
Bargaining unit employees have a right to engage in concerted activities for mutual aid and protection. This includes the "Weingarten Right", which was established by the United States Supreme Court in N.L.R.B. v. J. Weingarten, Inc., 95 S. Cf. 959 (1975) and which entitles bargaining unit employees to have a fellow employee present or be represented by a union representative in meetings with management whenthe employee reasonably believes that discipline may result from the meeting.

This right arises when an employee is called into an investigatory meeting or interview by an employer or supervisor and the employee reasonably believes that the meeting will result in disciplinary action. The employee then has the right to insist on being accompanied by a union representative or a fellow bargaining unit employee. It is well established that the Weingarten right does not give the employee the right to be represented by a private attorney. (See Montgomery Ward & Co. Inc., 269 NLRB 904 [19847 and Consolic/ ted Casinos Corp., 266 NLRB 988 119831) Whether or not the Weingarten right entitles the employee to have a union attorney present under the Act is still an open question.

The following elements must be present for the right to arise:

• The meeting or interview must be investigatory in nature.
  This means that the employer's purpose is to elicit information from the employee. Thus, if the meeting is simply to advise an employee of disciplinary action that the employer has already determined, the right does not arise—unless the employer attempts to elicit a confession or other information from the employee to further justify the disciplinary action. In addition, the right does not apply to so-called "shop floor" discussions. This would include instructions, training, needed correction of work techniques, suggested corrective action, or even a warning.
• The employee must have a reasonable belief that discipline might result as a consequence of the meeting.
  This determination will depend on the facts of each individual situation. For example, a prior warning regarding the subject matter of the meeting could be the basis for a reasonable belief that discipline might result from the interview or meeting.
• The employee must request that a union representative or fellow employee be present.
  Unlike a "Miranda" right, the employer is not required to advise an employee of his/her Weingarten right. The responsibility lies with the employee to make the request. It is not necessary to specifically request a union representative. Any indication by an employee that he/she wants "someone" present on his/her behalf will do. Once a valid request for representation is made, the employer has three choices:
  1. discontinue the meeting;
  2. grant the request; or
  3. offer the employee the choice of continuing the meeting unaccompanied or having no interview at all.

Keep in mind that if the employee chooses no interview, he/she may lose any benefit he/she may derive from participating without representation. In addition, the employer is free to continue its investigation without interviewing the employee.

If the employee's request for representation is granted, the representative's role is to assist the employee by helping to clarify facts or suggest other sources of information. However, the representative is not there to bargain or engage in adversarial or disruptive behavior. Keep in mind that the representative does not have to be a steward—it can be any bargaining unit member or co-worker with whom the employee is comfortable.

Finally, if an employee is disciplined for exercising his/her Weingarten right, or is disciplined based on information obtained from the employee in an illegal interview, the employer is in violation of the Act. Because the Weingarten right must be asserted by the employee, the National has developed a WEINGARTEN RIGHTS card that our members can carry in their wallets.

The Weingarten rights card reads:

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Rights of Stewards During "Weingarten” Interviews

Employers have the right to investigate the alleged misconduct off their employees, and employees have the obligation to cooperate during investigations of their alleged misconduct. The role of the Union, and the Union steward, is limited when management is conducting such an investigation. However, the Steward does have the right to "counsel and assist" employees during "Weingarten" interviews. The right to counsel and assist employees being investigated gives the steward the right to:

BEFORE THE INTERVIEW

• Be informed, by the supervisor/manager conducting the interview, of the subject matter of the interview (i.e. The type of alleged misconduct for which discipline is being considered)
• Take aside the employee being investigated for a pre-interview conference before questioning begins
• Give the employee advice on how to answer the questions asked, but he/she cannot tell the employee not to answer questions or to lie. (The Steward should advise the employee to answer only the questions asked, and not to volunteer information that is not reasonably elicited by the questions asked.)

DURING THE INTERVIEW

• Speak during the interview, but the Steward cannot question the employee being interviewed if the Employer does not want him/her to do so. The right of the employee to have Union representation during an investigatory interview does not give the Steward the right to make the interview an adversarial proceeding.
• Request clarification of the questions asked so that the employee is better able to understand what information is being sought

AFTER THE INTERVIEW

• Clarify the information provided by the employee in his/her answers to the Employer's questions
• Provide additional facts, which were not elicited by the Employer's questions, that are favorable to the employee.