"If this discussion could in any way lead to my being disciplined or discharged, request that my Union representative be present at the meeting. Without representation, I choose not to answer any questions."
Weingarten rights guarantee an employee the right to Union
representation during an investigatory interview. These rights, established by
the Supreme Court, in 1975 in the case of J'. Weingarten Inc,, must be claimed
by the employee. The supervisor has no obligation to inform an employee that
she/he is entitled to Union representation.
What is an Investigatory Interview?
An investigatory interview is one in which a Supervisor
questions an employee to obtain information which could be used as a basis for
discipline or asks an employee to defend his/her conduct. If an employee has a
reasonable belief that discipline or discharge may result from what s/he says,
the employee has the right to request Union representation.
Examples of such an interview are:
1. The interview is part of the employer's disciplinary procedure or is a component of
the employer's procedure for determining whether discipline will be imposed.
2. The purpose of the interview is to investigate an employee's performance where
discipline, demotion or other adverse consequences to the employee's job status
or working conditions are a possible result.
3. The purpose of the interview is to elicit facts from the employee to support
disciplinary action that is probable or that is being considered, or to obtain
admissions of misconduct or other evidence to support a disciplinary decision
4. The employee is required to explain his/her conduct, or defend it during the
interview, or is compelled to answer questions or give evidence.
It is an obligation of the Union to educate bargaining unit
employees about their Weingarten rights BEFORE an occasion to use
them arises. An employee must state to the employer that he/she wants a Union
representative present; the employer has no obligation to ask: the employee if
she/he wants a representative.
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 can't be punished for making this request.
Rule 2 - After the employee makes the request, the supervisor has 3 options. S/he mug either:
a. Grant the request and delay the interview 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
2) ending the interview
Rule 3 - If the supervisor denies the request and continues to ask questions, this is
an unfair labor practice and the employee has a right to refuse to answer. The
employee cannot be disciplined for such refusal but is required to sit there
until the supervisor terminates the interview. Leaving before this happens may
constitute punishable insubordination.
Union Representative's Rights Under Weingarten
You are not required to merely be 'silent witness'. You have the right to:
1. be informed by the supervisor of the subject matter of the interview
2. take the employee aside for a private conference before questioning begins
3. speak during the interview
4. request that the supervisor clarify a question so that what is being asked is understood
5. give employee advice on how to answer a question
6. provide additional information to the supervisor at the end of the questioning.
You do not have the right to tell the employee not to answer
nor, obviously, to give false answers. An employee can be disciplined for
refusing to answer questions.
A standard statement to suggest to members is:
"If this discussion could in any way lead to my being
disciplined or discharged, request that my Union representative be present at
the meeting. Without representation, I choose not to answer any questions."
The employer will be ordered to cease and desist and to post a
notice. Discipline that is imposed for insisting on Weingarten rights
will be overturned. Discipline will not be overturned if the discipline was for
reasons other than insistence on Weingarten rights. Although information
gained by the Employer from the employee in a meeting during which a breach of
Weingarten rights occurred, may be excluded from a hearing on the matter.