Volume 59, Issue 2
LEGAL EASE: Your Weingarten Rights
You have a right to union representation during an investigatory interview
What are Weingarten rights? One of a union representative’s most important duties is guarding against employer intimidation, particularly during disciplinary investigations, where the employer may attempt to coerce employees into making incriminating statements against themselves or their colleagues. For union-represented employees, one backstop against coercive investigatory interviews is Weingarten rights.
Weingarten rights, named for a United States Supreme Court case, states that an employee has a right to request a union representative in an investigatory interview when the employee has a reasonable basis to believe that discipline may result from the meeting. The right to a union representative applies to investigatory questioning that is written as well as oral. Weingarten rights must be asserted by the employee—the employer has no obligation to notify employees of these rights, and employees may choose to represent themselves if they wish. Keep in mind that Weingarten rights only apply to investigatory meetings that might result in the discipline of the employee. They do not apply to other types of meetings with the employer, such as a meeting where an employer merely notifies the employee of a disciplinary decision that the employer has already made.
Once the right is asserted, an employee is not entitled to their union representative of choice. The employer may proceed with the investigatory questioning as long as another union representative is available at the meeting time. But if an employee’s preferred union representative is available, the employer may not insist upon a different representative.
Additionally, the union representative has the right to sufficient information about the nature of the employee’s alleged wrongdoing before an investigatory interview takes place to allow for meaningful representation.
The union representative plays a vital role as a witness and advisor in connection with the investigatory interview. While the union representative cannot interfere with the employer’s civil questioning of an employee, the union representative can ask clarifying questions, take notes, assist the employee in providing additional information, and provide moral support.
Are employees’ communications with their union reps confidential? A union representative often will privately “caucus” with an employee before or during an investigatory interview. An employee might wonder if these private representational conversations are genuinely confidential or whether an employer can pry into them.
Fortunately, they are confidential. Federal courts, the National Labor Relations Board (NLRB), have long recognized the substantial privacy interests in communications between union reps and union members. Accordingly, they have found that employers who seek disclosure of the substance of conversations between employees and their union reps “manifestly restrain employees in their willingness to “candidly discuss” employment matters with their union, inhibit the union from gathering necessary information from employees, and “cast a chilling effect” over all employees and union representatives who seek to discuss employment matters candidly.
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