Weingarten Rights Reviewed
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Friday, March 7, 2014 |
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The NLRB's (National Labor Relations Board) General Counsel recently issued a memorandum to NLRB field offices which listed a number of issues that either involve General Counsel initiatives or are areas of law and labor policy that are of particular concern to the General Counsel. One of the issues listed by the General Counsel is cases involving the applicability of Weingarten principles in non-unionized settings. This interest in the Weingarten principles may signal that the NLRB may depart from established precedent in this area of the law.
Weingarten rights guarantee that an employee who is part of a union can request a union representative to be present during an investigatory interview. These rights were established in 1975 by the Supreme Court in the case NLRB v. Weingarten, Inc., 420 U.S. 251 (1975). The rights are only available during investigatory interviews which are defined as interviews occurring when a supervisor questions an employee to obtain information which could be used as a basis for discipline or asks the employee to defend his conduct.
The employee must request a union representative before or during the interview if the employee has a reasonable belief that the purpose of the interview is discipline or other adverse consequences. The employer does not have an obligation to inform the employee of his rights. The employer cannot punish the employee for invoking his rights.
Once the employee makes the request for union representation, the employer has three options:
1) Stop the interview until the representative arrives.
2) Deny the request and call off the interview immediately. or
3) Give the employee the option of having the interview without representation or ending the interview.
If the employer denies the request and continues to ask questions, this is considered an unfair labor practice and the employee has a right to refuse to answer. The employee cannot be disciplined for such refusal but is required to sit there until the supervisor terminates the interview.
The union representative also has rights under Weingarten. During an investigatory interview the supervisor must inform the union representative of the subject of the interview. The representative is allowed to speak privately with the employee before the interview. During the questioning, the representative can request clarification of confusing questions and advise the employee on answering questions. The representative may not tell the employee not to answer or to provide false answers. At the end of the interview, the representative can add information to support the employee's case.
In 2004, the NLRB determined that employees who work in a nonunionized workplace are not entitled to these rights even when the employee reasonably believes that the interview may result in discipline.
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