The right of employees to have union representation at investigatory interviews
(UNION REPRESENTATION DURING INVESTIGATORY INTERVIEWS)
A VITAL FUNCTION of a steward is to prevent management from coercing employees into confessions of misconduct. This is especially important when a worker is questioned by a supervisor experienced in interrogation techniques.
The NLRA’s protection of concerted activity includes the right to request assistance from union representatives during investigatory interviews. This was declared by the Supreme Court in 1975 in NLRB v. J. Weingarten, Inc. The rights announced by the Court have become known as Weingarten rights.
Unions should educate their members about the advantages of having a steward present at an investigatory interview. These include the ability of the steward to:
• serve as a witness to prevent a supervisor from giving a false account of the conversation;
• object to intimidation tactics or confusing questions;
• help an employee to avoid making fatal admissions;
• advise an employee, when appropriate, against denying everything, thereby giving the appearance of dishonesty and guilt;
• warn an employee against losing his or her temper;
• discourage an employee from informing on others; and
• raise extenuating factors.
WHAT IS AN INVESTIGATORY INTERVIEW?
Weingarten rights apply only during investigatory interviews. An investigatory interview occurs when: (1) management questions an employee to obtain information; and (2) the employee has a reasonable belief that discipline or other adverse consequences may result. For example, an employee questioned about an 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.
Shop-floor conversation. Not every discussion with management is an investigatory interview. For instance, a supervisor may speak with an employee about the proper way to do a job. The supervisor may even ask questions. But because the likelihood of discipline is remote, the conversation is not an investigatory interview.
A shop-floor conversation can change its character, however. If the supervisor’s attitude becomes hostile and the meeting turns into an investigatory interview the employee is entitled to representation.
Disciplinary announcement. When a supervisor calls an employee to the office to announce a warning or other discipline, is this an investigatory interview? The NLRB says no, because the supervisor is merely informing the employee of an already-made decision.196 Unless the supervisor asks questions about the employee’s conduct, the meeting is not investigatory.
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 an employee asks for representation, the employer must choose from among three options:
1. Grant the request and delay questioning until the union representative arrives;
2. Deny the request and end the interview immediately; or
3. Give the employee a choice of:
(a) having the interview without representation or
(b) 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 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: in other words, the type of misconduct being investigated.
• 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 object to a confusing question and can request that the question be clarified so that 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.
Employees sometime confuse Weingarten rights with Miranda rights. Under the Supreme Court’s Miranda decision, police who question criminal suspects in custody must notify them of their right to have a lawyer present. The Supreme Court did not impose a similar requirement in Weingarten. An employer does not have to inform an employee that he or she has a right to union representation. Unions should explain Weingarten rights to members in newsletters and at union meetings. Consider distributing wallet-sized cards such as the following:
(If called to a meeting with management, read the following or present this card to management when the meeting begins.)
If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I respectfully request that my union representative, officer, or steward be present at this meeting. Until my representative arrives, I choose not to participate in this discussion.
An employer’s failure to comply with a worker’s request for union representation, or a violation of any other Weingarten right, is an unfair labor practice. Unless a grievance is pending on the matter, the NLRB does not defer Weingarten charges.
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