A unionized employee who is subject to an investigatory interview that could lead to his/her discipline may request that a union representative be present during investigatory interviews that may lead to his or her discipline. While seemingly simple, this right, commonly referred to as “Weingarten rights,” is greatly misunderstood by both employers and employees.
What’s a Request?
An employer does not have a duty to inform represented employees of their Weingarten rights. Despite this, many unionized employers proactively inform employees subject to investigatory interviews of their Weingarten rights to avoid claims that the employee asked for union representation.
In addition, a union representative cannot invoke the rights on behalf of the employee. Finally, courts have held that employees do not have the right to ask for someone, other than a union representative, to be present at an investigatory meeting.
When the Rights Apply
There are many misconceptions as to when Weingarten rights apply. For example, one common misconception is that Weingarten rights apply in nonunion settings, when in fact, they do not. In addition, some employees mistakenly believe that Weingarten rights apply when a company is meeting with an employee to issue final discipline after an investigation has concluded, or that they apply to all witness interviews. However, Weingarten rights only apply to an employee whom the employer believes may be subject to discipline at the time the interview is conducted. Likewise, despite common belief, a union employee is not entitled to have the union representative of his or her choice.
Finally, Weingarten rights cannot be extended to enlist the presence of those other than union representatives. For example, an employee seeking to invoke his or her Weingarten rights cannot summon a personal attorney, family member or another third party rather than a union representative.
Role of a Union Representative
Employers should understand that a union representative participating in an investigatory interview does not have carte blanche to interfere with the interview process. For example, a union representative cannot necessarily continually raise objections and keep interrupting the employer’s questions. In addition, a union representative cannot turn an investigatory interview into an adversarial proceeding, nor can he or she prematurely terminate the interview.
Such conduct may be deemed to interfere with the company’s right to conduct an effective investigation.
However, the union representative can seek clarification of the employer’s questions. A representative can also ask to hold a private caucus with the employee during the interview.