THE WEINGARTEN RULE
An employee's right to
An employee may be
represented by the union at an investigatory interview with his or her
supervisor when the employee reasonably believes that the interview may lead to
a disciplinary action.
U.S. Supreme Court ruling:
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.
What is an investigatory
Employees have Weingarten
rights only during investigatory interviews. An investigatory interview occurs
when a supervisor questions an employee to obtain information which could be
used 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:
violation of safety rules
damage to state property
falsification of records
violation of work procedures
Under the Supreme Court's
Weingarten decision, when an investigatory interview occurs, the following
The employee must make a
clear request for union representation before or during the interview. The
employee cannot be punished for making this request.
After the employee makes
the request, the employer must choose from among three options. The employer
the request and delay questioning until the union representative arrives and
has a chance to consult privately with the employee; or Deny
the request and end the interview immediately; or Give the employee a choice
of: (1) having the interview without representation or (2) ending the
If the supervisor denies
the request for union representation and continues to ask questions, he or she
commits an unfair labor practice and the employee has the right to refuse to
answer. The supervisor cannot discipline the employee for such a refusal.
Rights of Stewards
Supervisors often assert
that the only role of a steward at an investigatory interview is to observe the
discussion, i.e., 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:
When the steward arrives, the supervisor must inform the steward of the subject
matter of the interview; i.e., the type of conduct for which discipline is
being considered (theft, lateness, drugs, etc.).
The steward must be allowed to take the worker aside for a private
pre-interview conference before questioning begins.
The steward must be allowed to speak during the interview. The steward,
however, does not have the right to bargain over the purpose of the interview.
The steward can request that the supervisor clarify a question so the worker
can understand what is being asked.
After a question is asked, the steward can give advice on how to answer.
When the questioning ends, the steward can provide information to the