(Union Representation During
ONE OF THE MOST VITAL FUNCTIONS OF A UNION
to prevent management from intimidating employees. Nowhere is this
more important than in closed-door meetings when supervisors or
guards, often trained in interrogation techniques, attempt to coerce
employees into confessing to wrongdoing.
The rights of employees
to the presence of union representatives during investigatory
interviews was announced by the U.S. Supreme Court in 1975 in NLRB
v. J. Weingarten, Inc. Since that case involved a clerk being
investigated by the Weingarten Company, these rights have become
known as Weingarten rights.
Unions should encourage workers to
assert their Weingarten rights. The presence of a steward can help
in many ways. For example:
The steward can help a fearful or inarticulate employee
explain what happened. Note: Charges alleging a violation of Weingarten rights are generally not deferred by
the NLRB. Nor are violations considered "de minimus" even if no
employee is disciplined.
The steward can raise extenuating factors.
The steward can advise an employee against blindly
denying everything, (hereby giving the appearance of dishonesty
The steward can help prevent an employee from making
The steward can stop an employee from losing his or her
temper, and perhaps getting fired for insubordination.
The steward can serve as a witness to prevent
supervisors from giving a false account of the conversation.
What Is an Investigatory Interview?
Employees have Weingarten rights only during investigatory
interviews. An investigatory interview occurs when a supervisor
questions an employee to obtain information which could be
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 a
right to request union representation. Investigatory interviews
usually relate to subjects such as:
every management Initiated discussion is an investigatory interview.
For example, a foreman may talk to a worker about the proper way to
do a job. Even if the boss asks questions, this is not an
investigatory interview because the possibility of discipline is
remote. The same is true of routine conversations to clarify work
assignments or explain safety rules.
damage to company property
falsification of records
violation of safety rules
Nevertheless, even an
ordinary shop-floor discussion can change its character if the
supervisor is dissatisfied with the employee's answers. If this
happens, the employee can insist on the presence of a union
representative before the conversation goes any
Disciplinary announcements. When a supervisor calls a worker to
the office to announce a warning or other discipline, is this an
investigatory interview affording the worker a right to union
representation? The NLRB says no, because the employer is merely
answering a previously arrived-at decision and is not questioning
the worker. Such a meeting, however, can be transformed into
an investigatory interview if the supervisor begins to ask questions
to support the decision . Note: An employer that has followed a past
practice of allowing stewards to be present when supervisors
announce discipline, must maintain the practice during the contract
term. Refusing to allow a steward to attend would constitute an
unlawful unilateral change.
Under the Supreme Court's Weingarten
decision, when an investigatory interview occurs, the following
Rule 1. The employee must make a clear request for
union representation before or during the interview. The employee
cannot be punished for making this request.
Rule 2. After the
employee makes the request, the employer must choose from among
three options. The employer must either:
a. Grant the request and
delay questioning until the union representative arrives and has a
chance to contact 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 or (2) ending the interview.
Rule 3. If the
employer denies the request for union representation, and continues
to ask questions, it Commits an unfair labor practice and the
employee has the right to refuse to answer. The employer may not
discipline the employee for such a refusal.
often assert that the only role of a steward as an investigatory
interview is to observe the discussion; in other words, to be a
silent witness. The Supreme Court, however, clearly acknowledged a
steward's right to assist and counsel workers during the interview.
Decided cases establish the following procedures:
1. When the
steward arrives, the supervisor must inform the steward of the
subject matter of the interview, i.e., the type of misconduct for
which discipline is being considered (theft, lateness, drugs
2. The steward must be allowed to take the worker aside
for a private pre-interview conference before questioning
3. The steward must be allowed to speak during the
interview. However, the steward does not have the right to bargain
over the purpose of the interview.
4. The steward can request
that the supervisor clarify a question so that the worker can
understand what is being asked.
5. After a question is asked, the
steward can give advice on how to answer.
6. When the questioning
ends, the steward can provide additional information to the
It must be emphasized that if the Weingarten rules
are complied with, stewards have no right to tell workers not to
answer questions, or to give false answers.
can be disciplined if they refuse to answer questions.
You may be
familiar with the "Miranda warnings" given by police. The Miranda
warnings notify criminal suspects of their rights, including the
right to a lawyer and to remain silent. Unfortunately, the Supreme
Court did not impose a notice requirement in its Weingarten
decision. Employers have no obligation to inform workers of their
right to request union representation. This is the union's
Unions should explain Weingarten rights at meetings and
in newsletters. A good way to get the word out is to distribute
wallet-sized cards saying the following:
If this discussion
could in any way lead to my being disciplined or terminated, or
affect my personal working conditions, I respectfully request that
my union representative, officer, or steward be present at the
meeting. Without representation, I choose not to answer any
On the other side of the card, print information
about the union, such as
office address, telephone number, and
the names of officers. Tell members to present the card whenever
they fear that what they say may affect their position.
Demanding to attend meeting
Q. If I see a worker being interviewed
in a supervisor s office, can I demand to attend the meeting?
Yes. A steward has a protected right to demand admission to a
Weingarten interview. However, once the request is made, the
employee being interviewed must indicate a desire for your
presence. If the employee states that he or she wishes to be
interviewed alone, the steward must leave.
2. Coercing employee to drop
employee was summoned to an interview with his foreman and asked for
his steward. In response, the foreman said. "You can request your
steward, but if you do, I will have to bring in the plant manager,
and you know how temperamental she is. If we can keep it at the
level we're at, things will be a lot better for you."
A. Yes. The foreman is threatening greater discipline
to coerce the employee into abandoning his Weingarten rights. This
is an unfair labor practice.
3. Employee refuses to go to meeting
Q. An employee was ordered by her
foreman to the personnel office for a "talk" about her attitude. She
asked to bring a union representative but the foreman said she would
have to make her request when she got to the office. Can she refuse
to go to the office?
A. No. Weingarten rights do not begin until
the actual interview begins. The employee must go to the office and
repeat her request to the official conducting the interview. Only if
a supervisor makes clear in advance to the employee that he or she
intends to conduct an investigatory interview without union
representation, does an employee have a right to refuse to go to a
company is recalling workers from a layoff and is insisting on
medical examinations for those out of work three months or more. Can
the workers demand a steward's presence during the
A. No. Medical examinations are not investigatory
interviews. Weingarten rights do not apply.
5. Lie detector
Weingarten apply to a polygraph examination?
A. Yes. An employee
has a right to union representation during the pre-examination
interview and the examination itself.
Q. If management asks a worker to
submit to a urine test for drugs, does Weingarten apply?
Yes and no. Since a urine test is not questioning, an employee does
not have a right to the presence of a steward during the actual
test. Management must, however, allow the employee to consult with a
union representative to decide whether or not to take the
Can management order a worker to open a locker without a steward
A. Yes. Locker searches, car searches, or handbag
searches are not interviews. Employees do not have a right to insist
on the presence of a steward.
employee was given a written warning about poor attendance and told
he must participate in absence counseling sessions with a member of
the personnel department. Does the worker have a right to demand the
presence of a union steward at the counseling sessions?
depends on whether the employee has a reasonable fear that the
counseling sessions could result in further discipline. If notes
from the sessions are kept in the employee's permanent record, or if
other employees have been disciplined after counseling sessions, the
employee's fears would be reasonable and would entitle him to
bring a steward. But if the employer gives firm assurances
that the meetings will not be used for further discipline and
promises that the conversations will remain confidential, Weingarten
probably would not apply.
9. Request to sign warning
Q. If a
worker is given a warning slip for misconduct and is asked to sign
the slip to acknowledge receipt, must the employer permit her to
consult her steward before signing?
A. No. Since the employer is
not questioning the worker, Weingarten rights do not apply.
10. Request for
Q. Can a
worker insist on the presence of a lawyer before answering questions
at an investigatory interview?
A. Not where employers
simply announce discipline. However, if the employer starts
asking questions or tries to make the employee admit guilt,
Weingarten would apply and the employee can insist on the presence
of a steward or other union representative before answering.
13. Steward not at
Q. If a
worker's steward is out sick, can the worker insist that the
interview be delayed until the steward is available?
Management does not have to delay an investigation if other union
representatives are available to assist the employee at the
14. Steward's right to representation
Q. If l am called in by my foreman to
discuss my work record, do l have the right to a union
A. Yes. Union stewards have Weingarten rights. If
you fear discipline or other adverse action, you have the right to
the presence of a union representative.
15. Walking out of
Suppose a worker's request for a steward is denied. If the
supervisor continues to ask questions, can the worker walk out of
the office to get a steward?
A. In some cases, yes. According to
NLRB decisions, when an employee is entitled to union representation
and the employer denies the employee's request, an employee can
refuse to participate in the interview, even to the point of walking
out to seek a union representative. However, if the employee is told
to wait while management gets the steward, the employee must stay in
the office until the steward arrives.
Q. If the
company calls a meeting to lecture workers about job performance, do
the employees have a right to demand the presence of a union
representative before attending the meeting?
A. No. Holding a
meeting on work time which does not involve interrogation is not a
Weingarten meeting. There is no right to a steward unless the
employer begins asking questions of employees in a manner that
creates a reasonable fear of discipline.
17. Penalties for Weingarten
management refuses an employee's request for union representation,
gets the employee to confess to theft, and then fires the employee,
will the NLRB order the worker to be reinstated?
A. Probably not.
The NLRB used to order the reinstatement of employees who were fired
as a result of admissions during an illegal interview. But in 1984
the Board ruled that such a penalty was an unwarranted "windfall"
for guilty workers. The standard Weingarten penalty is now limited
to a bulletin board posting in which the employer promises not to
repeat its violations.