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 s/he is entitled to Union representation.
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.
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 must either:
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.
Situations where Weingarten Rights DO NOT apply are:
An employee has NO right to the presence of a Union representative where:
1. The meeting is merely for the purpose of conveying work instructions, training, or communicating needed corrections in the employee's work techniques.
2. The employee is assured by the employer prior to the interview that no discipline or employment consequences can result from the interview.
3. The employer has reached a final decision to impose certain discipline on the employee prior to the interview, and the purpose of the interview is to inform the employee of the discipline or to impose it.
4. Any conversation or discussion about the previously determined discipline which is initiated by the employee and without employer encouragement or instigation after the employee is informed of the action.
Even in the above four (4) circumstances, the employee can still ask for representation. Most employers will permit a representative to attend even when not required to.