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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 agents, sometimes trained in interrogation techniques, attempt to coerce employees into confessing to wrongdoing.
The rights of employees to the presence of a union representative 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.
Unions should encourage workers to assert their Weingarten Rights. The presence of a steward can help in many ways. For example:
The steward can help a fearful or inarticulate employee explain what happened.
The steward can raise extenuating factors.
The steward can advise an employee against blindly denying everything (whereby giving the appearance of dishonesty and guilt).
The steward can help prevent an employee from making fatal admissions.
The steward can stop an employee from losing his or her temper, and perhaps getting fired for insubordination.
The steward can serve as a witness to prevent supervisors from giving a false account of the conversation.
Note: Charges alleging a violation of Weingarten Rights are generally not deferred by the NLRB. Nor are violations considered "de minimus" even if no employee is disciplined.
What Is an Investigatory Interview?
Employees have Weingarten rights during investigatory interviews. An investigatory interview occurs when a supervisor questions an employee to obtain information that 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:
- damage to company property
- falsification of records
- poor attitude
- violation of safety rules
- work performance
Work location conversations
Not every management Initiated discussion is an investigatory interview. For example, a supervisor may talk to a worker about the proper way to do a job. Even if the boss asks questions, this is not an investigatory interview because the possibility of discipline is remote. The same is true of routine conversations to clarify work assignments or explain safety rules.
Nevertheless, even an ordinary shop-floor discussion can change its character if the supervisor is dissatisfied with the employee's answers. If this happens, the employee can insist on the presence of a union representative before the conversation goes any further.
When a supervisor calls a worker to the office to announce a warning or other discipline, is this an investigatory interview affording the worker a right to union representation? The NLRB says no, because the employer is merely answering a previously arrived-at decision and is not questioning the worker.
Such a meeting, however, can be transformed into an investigatory interview if the supervisor begins to ask questions to support the decision. Note: An employer that has followed a past practice of allowing stewards to be present when supervisors announce discipline, must maintain the practice during the contract term. Refusing to allow a steward to attend would constitute an unlawful unilateral change.
Under the Supreme Court's Weingarten decision, 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 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:
a. Grant the request and delay questioning until the union representative arrives and has a chance to communicate privately with the employee; or
b. Deny the request and end the interview immediately; or
c. Give the employee a choice of: (1) having the interview without representation or (2) ending the interview.
Rule 3. If the employer denies the request for union representation, and continues to ask questions, it commits an unfair labor practice and the employee has the right to refuse to answer. The employer may not discipline the employee for such a refusal.
Rights of Stewards
Employers often assert that the only role of a steward at an investigatory interview is to observe the discussion; in other words, 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:
1. When the steward arrives, the supervisor must inform the steward of the subject matter of the interview, i.e., the type of misconduct for which discipline is being considered (theft, lateness, drugs etc.).
2. The steward must be allowed to take the worker aside for a private pre-interview conference before questioning begins.
3. The steward must be allowed to speak during the interview. However, the steward does not have the right to bargain over the purpose of the interview.
4. The steward can request that the supervisor clarify a question so that the worker can understand what is being asked.
5. After a question is asked, the steward can give advice on how to answer.
6. When the questioning ends, the steward can provide additional information to the supervisor. It must be emphasized that if the Weingarten rules are complied with, stewards have no right to tell workers not to answer questions, or to give false answers.
Workers can be disciplined if they refuse to answer questions.
Questions and Answers
1. Demanding to attend meeting
Q. If I see a worker being interviewed in a supervisors office, can I demand to attend the meeting?
A. Yes. A steward has a protected right to demand admission to a Weingarten interview. However, once the request is made, the employee being interviewed must indicate a desire for your presence. If the employee states that he or she wishes to be interviewed alone, the steward must leave.
2. Coercing employee to drop request
Q. An employee was summoned to an interview with his supervisor and asked for his steward. In response, the supervisor said. "You can request your steward, but if you do, I will have to bring in the manager, and you know how temperamental he is. If we can keep it at the level we're at, things will be a lot better for you.” Is This A Violation?
A. Yes. The supervisor is threatening greater discipline to coerce the employee into abandoning his/her Weingarten rights. This is an unfair labor practice.
3. Employee refuses to go to meeting
Q. An employee was ordered by his/her supervisor to the Labor Relations office for a "talk" about his/her attitude. He/she asked to bring a union representative but the supervisor said he/she would have to make her request when he/she got to the office. Can he/she refuse to go to the office?
A. No. Weingarten rights do not begin until the actual interview begins. The employee must go to the office and repeat his/her request to the official conducting the interview. Only if a supervisor makes clear in advance to the employee that he or she intends to conduct an investigatory interview without union representation, does an employee have a right to refuse to go to a meeting.
4. Medical examination
Q. The company is recalling workers from a layoff and is insisting on medical examinations for those out of work three months or more. Can the workers demand a steward's presence during the examination?
A. No. Medical examinations are not investigatory interviews. Weingarten rights do not apply.
5. Lie detector test
Q. Does Weingarten apply to a polygraph examination?
A. Yes. An employee has a right to union representation during the pre-examination interview and the examination itself.
Q. If management asks a worker to submit to a urine test for drugs, does Weingarten apply?
A. Yes and no. Since a urine test is not questioning, an employee does not have a right to the presence of a steward during the actual test. Management must, however, allow the employee to consult with a union representative to decide whether or not to take the test.
7. Locker search
Q. Can management order a worker to open a locker without a steward being present?
A. Yes. Locker searches, car searches, or handbag searches are not interviews. Employees do not have a right to insist on the presence of a steward.
8. Request to initial an interim
Q. If a worker is given a warning for misconduct and is asked to initial an interim to acknowledge the interim being read by the employee, must the employer permit her to consult her steward before signing?
A. No. Since the employer is not questioning the worker, Weingarten rights do not apply. But, the employee should request a copy and forward it to the union office.
9. Steward not at work location
Q. If a worker's steward is out sick, can the worker insist that the interview be delayed until the steward is available?
A. No. Management does not have to delay an investigation if other union representatives are available to assist the employee at the interview.
10. Steward's right to representation
Q. If a Steward is called in by his/her supervisor to discuss his/her work record does he/she have the right to a union representative?
A. Yes. Union stewards have Weingarten rights, too. If you have a reasonable belief of discipline or other adverse action, you have the right to the presence of a union representative.
11. Walking out of an investigatory interview
Q. Suppose a worker's request for a steward is denied. If the supervisor continues to ask questions, can the worker walk out of the office to get a steward?
A. In some cases, yes. According to NLRB decisions, when an employee is entitled to union representation and the employer denies the employee's request, an employee can refuse to participate in the interview, even to the point of walking out to seek a union representative. However, if the employee is told to wait while management gets the steward, the employee must stay in the office until the steward arrives.
12. Work location meeting
Q. If the company calls a meeting to lecture workers about job performance, do the employees have a right to demand the presence of a union representative before attending the meeting?
A. No. Holding a meeting on work time that does not involve interrogation is not a Weingarten meeting. There is no right to a steward unless the employer begins asking questions of employees in a manner that creates a reasonable belief of discipline ensuing.
13. Penalties for Weingarten violations
Q. If management refuses an employee's request for union representation, gets the employee to confess to theft, and then fires the employee, will the NLRB order the worker to be reinstated?
A. Probably not. The NLRB used to order the reinstatement of employees who were fired as a result of admissions during an illegal interview. But in 1984 the Board ruled that such a penalty was an unwarranted "windfall" for guilty workers. The standard Weingarten penalty is now limited to a bulletin board posting in which the employer promises not to repeat its violations.