Avoid These Common Misconceptions About Weingarten Rights

Allen Smith, J.D. By Allen Smith, J.D. April 21, 2021
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an interview

​A unionized employee can request that a union representative be present during certain investigatory interviews, but this prerogative is frequently misunderstood. Employers and employees should know more about this entitlement, commonly referred to as "Weingarten rights," including what constitutes a request, when the rights apply and the role of union representatives at the interviews.

Named for a 1975 Supreme Court case, NLRB [National Labor Relations Board] v. J. Weingarten Inc., Weingarten rights apply to an employee who is subject to an investigatory interview that could lead to his or her discipline and who requests union representation.

"Honoring Weingarten rights is important when they apply because failure to do so can result in any ultimate discipline being overturned by the NLRB," said David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis.

What's a Request?

An employer does not have a duty to inform represented employees of their Weingarten rights.

Courts have denied a request to include an employee asking for someone—but not specifically a union representative—to be present to tell the employee what is happening, said Amber Rogers, an attorney with Hunton Andrews Kurth in Dallas.

However, Rogers noted that an employee's statement that "I called the union three times, and nobody showed up—I'm here without representation" didn't trigger Weingarten rights in one case.

However, an employee's inquiry regarding whether the worker should have someone from the union present was deemed a request sufficient to invoke Weingarten rights in another case.

A union representative cannot invoke the rights on behalf of the employee, noted Bindu Gross, an attorney with Ogletree Deakins in Dallas.

Many unionized employers proactively inform employees subject to investigatory interviews of their Weingarten rights to avoid claims the employee asked for union representation, said Phillip Wilson, president and general counsel of the Labor Relations Institute in Broken Arrow, Okla.

When the Rights Apply

One common misconception is that Weingarten rights apply in nonunion settings. "This was true for a brief period of time in the early 2000s, but it is no longer the case," Pryzbylski said.

Some employees mistakenly think that Weingarten rights apply when a company is meeting with an employee to issue final discipline, including termination, after an investigation has concluded, he added.

Another misconception about Weingarten rights is that a union employee is entitled to have the union representative of his or her choice.

"That is not the case," Pryzbylski said. "If a worker's preferred steward is not working or otherwise unavailable when the investigatory interview is to be conducted, the employee cannot delay the investigation by demanding the company wait until a specific union representative is available."

Yet another misconception is that Weingarten rights apply to all witness interviews during an investigation. "They do not, as they only apply to an employee who the employer believes may be subject to discipline at the time the interview is conducted," Pryzbylski said.

Gross pointed out that 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 instead of a union representative.

[See SHRM members-only toolkit: Preparing for the Possibility of Union Organizing]

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," Pryzbylski said.

In one 1992 case, the NLRB found that an employer lawfully ejected a Weingarten representative from an investigatory interview when the representative raised objections and kept interrupting the employer's questions. That conduct was deemed to have interfered with the company's right to conduct an effective investigation, he said.

"The NLRB recently affirmed some of these principles in another case last year," he said. "In that case, the NLRB determined an employer properly instructed union representatives and other attendees at an investigatory meeting to stop speaking when people were talking over one another while the interview was being conducted." The company wanted to get an uninterrupted account of the employee's version of events, so it was within its authority to direct the cessation of the extraneous chatter to ensure it remained in control of the interview.

"The bottom line is that union representatives cannot hijack an investigatory interview and interfere with a valid workplace investigation under the guise of Weingarten rights," Pryzbylski said.

The employer usually does not want to eject the union representative, Wilson cautioned. "That makes the investigations worse, on balance," he said.

Nonetheless, a union representative cannot turn an investigatory interview into an adversarial proceeding, Rogers noted. Nor can he or she prematurely terminate the interview.

To be sure, "the very purpose of Weingarten rights is to change the dynamic of employer-employee investigatory interviews, by adding a layer of protection to the rights of employees to act in concert for mutual aid and protection," she stated. "Weingarten rights act as a backstop to an employer's ability to engage in potentially coercive interrogations of represented employees, a necessary side effect of which is that the employer's investigations will be impeded, to some degree, by employees' union representatives."

The union representatives can seek clarification of employer's questions. A representative also can ask to hold a private caucus with the employee during the interview, Gross said.

Set Ground Rules

But don't allow union representatives to dictate the pace of interviews or control meetings, Gross added. And do not let union representatives answer for employees, he said.

"A best practice is to set ground rules" with the union representatives, Pryzbylski said. "You cannot direct them to remain silent, but you can set the expectation that only one person should be speaking at a time."

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