Union members can have a union rep present at interviews that may lead to discipline. By Lisa Guerin, J.D.
If you are a union member, you have a right to have union representation at any interview or meeting that could lead to disciplinary action against you. The Supreme Court case of National Labor Relations Board v. Weingarten, decided in 1975, established this basic entitlement and the procedures for when and how union reps may participate in interviews. Collectively, these rules are referred to as “Weingarten rights.”
When Weingarten Applies
An employee who reasonably believes that an investigatory interview could lead to discipline is entitled to ask for union representation. An investigatory interview is a meeting with management at which the employee will be questioned or asked to explain his or her conduct, and which could lead to disciplinary action against the employee.
The employer is not obligated to inform employees of their Weingarten rights or to ask whether an employee would like a union rep at a meeting or interview. The employee must affirmatively request union representation.
The Employer’s Options
Once an employee requests representation, the employer may not proceed with the interview without the union representative. However, the employee need not conduct the interview at all: It may interview the employee with the union rep present, or refuse to allow the union rep and discontinue the interview, carrying on its investigation by other means.
The Role of the Union Representative
The employer is under no duty to bargain with the union representative at the investigatory interview. The rep is present only to assist the employee. For example, the rep can clarify the facts, provide additional information, or suggest possible witnesses. The employer is free to insist that the employee provide his or her own version of the events under investigation.
Although some employers believe they are required only to allow a union rep to observe the interview without participating, Weingarten clearly gives employees the right to assistance from the rep. At the same time, however, a rep who consistently interrupts the proceedings or instructs an employee not to answer questions has likely overstepped his or her authority.
Only Union Members Are Protected
Today, it’s clear that only employees who are in a union have Weingarten rights. For a few years, however, this right applied to everyone. In 2000, the National Labor Relations Board (NLRB) extended Weingarten rights to all employees, whether or not they were in a union. Non-union employees were entitled to ask that a coworker be present at investigatory interviews. However, the NLRB reversed itself in 2004, going back to its previous interpretation that only union members have Weingarten rights.