In 1975 the
Supreme Court of the United States of America
in a case entitled
"National Labor Relations Board v. J. Weingarten, Inc."
upheld a critical right of union employees.
The Weingarten Right, as a right, is derived from the Supreme Court's 1975 Weingarten decision where the court recognized union employees' rights to representation at investigatory interviews. The National Labor Relations Board (NLRB) now takes the position and holds that the right to representation at investigatory interviews applies equally to union and non-union employees.
Weingarten Rights includes the right to have a coworker present at an investigatory interview that the employee reasonably believes might result in discipline. Weingarten Rights must be invoked by an employee before an employer has any corresponding obligations. An employee must request the presence of a coworker at an investigatory interview.
The portion of the relevant statute provides that:
"(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be requested at -
A. any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment; or
B. any examination of an employee in the unit by a representative of the agency in connection with an investigation if -
i. the employee reasonably believes that the examination may result in disciplinary action against the employee; and
ii. the employee requests representation.
(3) Each agency shall annually inform its employees of their rights under paragraph (2)(B) of this subsection."
On June 15, 2004, The National Labor Relations Board ruled that non-unionized employees 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 employee reasonably believes that the interview might result in discipline. This is a reversal of the July 2000 decision of the Clinton Board that extended Weingarten Rights to non-unionized employees.
An investigatory interview occurs when a supervisor or management representative 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 (if they were a union member at the time the conduct in question occurred).
Manageent is only required to inform employees of their Weingarten Rights once a year, not necessarily at the time of the interview.
When an employee makes the request for a union representative to be present, management has three options:
(1) it can stop the questioning until the representative arrives.
(2) it can call off the interview.
(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 employee should always refuse).
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 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.
If you were a union member at the time that any conduct on your part that is being investigated occurred, you should immediately request union representation before proceeding with the interview
or providing a written statement.
Remain calm and respectful and say:
"I am a member of AFSCME Local 121. I am invoking my right,
as granted by the Supreme Court of the United States,
to have a union representative present during this meeting
because I believe that it may result in disciplinary
action against me or impact my personal working conditions.
If my request for representation is denied, I will decline to answer any questions until such time as I am properly represented."
You must know about this right on your own.
Management does not have to inform you of this right.
It is Local 121's standard policy that we will not give away the rights and privileges that our faithful members pay for.
Therefore, we will NOT represent any one who was not a dues-paying member at the time the thing they are accused of occurred.