If you do workplace investigations, you need to know about this 50-year-old Supreme Court decision that applies to interviewing union members.
There are additional legal requirements when the person being interviewed is a member of a labor union. Principal among these are the requirements of NLRB vs J. Weingarten, Inc., 420 U.S. 251, which was decided by the United States Supreme Court concerning the rights of unionized workers.
Weingarten rights apply only during investigatory interviews — i.e., when management questions an employee to obtain information and the employee has a reasonable belief that discipline or other adverse consequences may result. For example, an employee questioned about a workplace accident would be justified in fearing that she might be blamed for it. An employee questioned about poor work would have a reasonable fear of disciplinary action if he should admit to making errors.
Under the Supreme Court’s Weingarten decision, the following rules apply to investigatory interviews:
- The employee can request union representation before or at any time during the interview.
- When the employee asks for representation, the employer must grant the request and delay questioning until the union representative arrives, deny the request and end the interview immediately, or give the employee a choice of having the interview without representation or ending the interview.
- If the employer denies the request for union representation and continues the meeting, the employee can refuse to answer questions.
Employers sometimes assert that the only function of a union steward at an investigatory interview is to observe the discussion — in other words, to be a silent witness. This is incorrect. The steward must be allowed to advise and assist the employee in presenting the facts.
When the steward arrives at the meeting, the supervisor or manager must inform the steward of the subject matter of the interview and the type of misconduct being investigated, and the steward must be allowed to have a private meeting with the employee before questioning begins.
The steward can speak during the interview but cannot insist that the interview be ended. The steward can also object to a confusing question and request that the question be clarified so the employee understands what is being asked.
The steward can advise the employee not to answer questions that are abusive, misleading, badgering, or harassing. When the questioning ends, the steward can provide information to justify the employee’s conduct.
An employer does not have to inform an employee that he or she has a right to union representation.
Questions and Answers Regarding Weingarten Rights
Steward’s Request
Question: If the steward sees a worker being questioned in a supervisor’s office, can he ask to be admitted?
Answer: Yes. A steward has a right to insist on admission to a meeting that appears to be a Weingarten interview. If the investigation is investigatory, the employee must be allowed to indicate whether he or she desires the steward’s presence.
Coercion
Question: An employee, summoned to a meeting with a supervisor, asked for a steward. The supervisor said, “You can request a 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 this level, things will be better for you.” Is this a Weingarten violation?
Answer: Yes. The supervisor is raising the specter of increased discipline to coerce an employee into abandoning her Weingarten rights.
Can an Employee Refuse to Go To a Meeting?
Question: A supervisor told an employee to report to the personnel office for a “talk” about his attendance. The employee asked to see a steward, but the supervisor said no. Can the employee refuse to go to the office without see a steward first?
Answer: No. Weingarten rights do not arise until an investigatory interview actually begins. The employee must make a request for representation to the person conducting the interview
Medical Examination
Question: An employer requires medical examinations when workers return from medical leaves. Can an employee insist on a steward during the examination?
Answer: No. A run-of-the-mill medical examination is not an investigatory interview.
Lie Detector Test
Question: Do Weingarten rights apply to polygraph tests?
Answer: Yes. An employee has a right to union assistance during the pre-examination interview and the test itself.
Sobriety Test
Question: If management asks an employee if he will submit to a test for alcohol, does Weingarten apply?
Answer: The employee must be allowed to consult with a union representative to decide whether or not to take the test.
Locker Search
Question: If a guard orders an employee to open a locker, can the employee insist on a steward being present?
Answer: No. A locker search is not an investigatory interview.
Counseling Session
Question: An employee was given a written warning for poor attendance and told she must participate in counseling with the human relations department. Does she have a right to a union steward at the counseling session?
Answer: This depends. If notes from the sessions are kept in the employee’s permanent record, or if other employees have been disciplined for what they said at counseling sessions, an employee’s request for a steward would come under Weingarten. But if management gives a firm assurance that the meetings will not be used for discipline, and promises that the conversations will remain confidential, Weingarten right would probably not apply.
Private Attorney
Question: Can a worker insist on a private attorney before answering questions at an investigatory interview?
Answer: No. Weingarten only guarantees the presence of a union representative
Recording the Interview
Question: Can a supervisor record an investigatory interview?
Answer: This depends. The Weingarten decision itself does not forbid an employer from tape recording an investigatory interview. But if this represents a new policy on the part of the employee, the steward can object on the grounds that the union did not receive prior notice and have an opportunity to bargain.
Questions About Others
Question: If a worker is summoned to a meeting and asked about the role of other employees in illegal activities, can he insist on assistance from a union representative?
Answer: Yes. Although the employee may not be involved in wrongdoing himself, he risks discipline if he refuses to inform on others or admits that he was aware of illegal activities. Because what he says at the meeting could get him into trouble, he is entitled to union representation.
Obstruction
Question: The company is interviewing employees about drug use in the plant. If I tell my people not to answer questions, could management go after me?
Answer: Yes. A union representative may not obstruct a legitimate investigation into employee misconduct. If management learns of such orders, you could be disciplined.
What Are the Rights of a Non-Union Employee in a Unionized Business?
It’s not uncommon to have a mixture of union and non-union employees in the same business entity. Some employees may have chosen not to join the union. Others may be excluded from union membership because of their supervisory or management positions. These individuals do not have Weingarten rights.
As a matter of fairness and to preclude potential allegations of impropriety, they should be allowed to have an observer of their choice present during the interview. The observer should not be allowed to participate in the interview in any manner. The observer is not an adviser to the interviewee, and both parties should be made aware of this restriction. The observer should be seated in a position where the interviewee and observer cannot exchange non-verbal cues.
At a later date, the circumstances of an interview may be called into question for the purpose of claiming intimidation of the interviewee. As a precaution, the circumstances of the interview should be documented. At a minimum, this documentation should include:
- the start and ending times of the interview;
- the location of the interview room and the location of each person within the room;
- all persons present during the interview and the reason for their presence;
- how long each person was present in the interview room;
- refreshments provided to the interviewee;
- the times and length of each break in the interview process. (If the interviewers have drinks or other refreshments, the interviewee should be provided with similar amenities.)
The 1975 Weingarten decision guarantees union employees the right to have a union representative present during any interview that the employee reasonably believes could lead to discipline. If you’re a professional investigator who does workplace investigations, you need to understand Weingarten rights and abide by them in investigatory interviews.
About the author:
William F. Blake, MS, CPP, CFE has more than 60 years’ experience in civil and criminal investigations, security, executive protection, loss prevention, disaster recovery planning, and counterintelligence operations. He is a retired Chief Warrant Officer of the U.S. Army, where he served as Military Intelligence Special Agent and Criminal Investigation Division Special Agent. As a military instructor, he oversaw the criminal investigation curriculum attended by members of the Department of Defense. After retiring from the military, he worked as a security manager and investigator for a major bank. Blake has a B.S. in police administration and an M.S. in foundations of education and is the author of several books on security and investigations.