Weingarten Rights allow employees to request union representation during investigative interviews where they may face disciplinary action or termination. The supervisor must grant permission or end the interview, and the union representative can ask for clarifications but cannot advise the employee to refuse or give false answers. The NLRB has changed its position on the application of Weingarten rights to non-unionized workplaces.
“The Weingarten Rights” is a term used to describe the assurance of employees to request union representation during certain interviews. These rights were established in 1975 by the U.S. Supreme Court following an unfair labor practices lawsuit brought before the National Labor Relations Board (NLRB) on behalf of Leura Collins, an employee of food chain J. Weingarten, Inc. The court ruled that employees are entitled, under Article 7 of the national law on labor relations, to the presence of a union representative during any investigation where the employee is in danger of being fired.
An investigative interview as defined by Weingarten rights is one in which a supervisor interviews an employee to uncover information that can be used for disciplinary purposes or to enable the employee to explain his or her conduct. An employee who participates in an investigative investigation has the right to request a union representative if you have a reasonable belief that you could derive some sort of discipline or termination from what you say. The manager is not obliged to ask the worker if he wants the presence of the trade union representation; it is the worker’s duty to demand it.
When the employee makes a request, the supervisor has three options: grant permission for union representation, deny permission, and immediately end the interview, or give the employee the option to conduct the interview without union representation, or immediately end the interview. If the supervisor continues the interview after denying the employee’s request for representation, he or she is conducting an unfair labor practice under labor law and the employee may refuse to answer any further questions. Although the worker cannot be penalized for such a refusal, he is required to remain on site until the supervisor has concluded the interview, since leaving constitutes punishable insubordination.
Weingarten’s rights also apply to the trade union representative. In addition to the private consultation with the employee, the union representative must be informed of the subject of the investigative interview before it is conducted. During the interview, he can ask for clarifications on the questions posed by the supervisor and give advice to the employee on how to respond. The union representative, however, does not have the right to tell the worker to refuse to give answers or to give false ones.
Since the establishment of Weingarten rights, the NLRB has repeatedly extended and withdrew its protection. While the right itself has never been removed, the council has changed its position several times regarding its application to non-unionized workplaces. The NLRB extended Weingarten’s rights to non-union employees in a Supreme Court case, only to overturn its decision in a subsequent one.
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