Weingarten Rights (the right to union representation when being questioned)
Under the Supreme Court’s Weingarten decision, when an investigatory interview occurs, the following rules apply:
CSEA Unit 9200 Union office: (914) 995-2151
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:Grant the request and delay questioning until the union representative arrives and has a chance to consult privately with the employee; orDeny the request and end the interview immediately; or
Give the employee a choice of (1) having the interview without representation or (2) ending the interview.
One of the most vital functions of a Union steward is 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.
In 1975, in NLRB v. J. Weingarten, Inc, the U.S. Supreme Court announced the rights of employees in the presence of union representatives during investigatory interviews. Since that case involved a clerk being investigated by the Weingarten Company, these rights have become known as Weingarten rights.
Weingarten Rights have since been extended to non-union workplaces. The NLRB ruled July 10, 2000, in Epilepsy Foundation of Northeast Ohio, Slip Opinion No. 331-92, Case No. 8-CA-28169, that Weingarten Rights also applies to non-union workplaces. However, in June 2004 [341 NLRB No. 148 (2004)], in IBM Corp. and Kenneth Schult, the National Labor Relations Board (Board) reversed themselves and decided by a 3-2 vote that non-unionized employees are not legally entitled to have a coworker present during an investigatory interview that the employee reasonably believes might result in discipline.
In an important decision for employers, the National Labor Relations Board recently held in IBM Corp., 341 NLRB No. 148 (2004) that nonunionized employees no longer have the right to have a coworker with them at an investigative interview, even when the employee reasonably believes the investigation might result in disciplinary action.
September 21, 2004 – Hughes Hubbard & Reed LLP