Weingarten rights guarantee an employee the right to Union representation during an investigatory interview. These rights, established by the Supreme Court, in 1975 in the case of J'. Weingarten Inc,, must be claimed by the employee. The supervisor has no obligation to inform an employee that s/he is entitled to Union representation.
What is an Investigatory Interview?
An investigatory interview is one in which a Supervisor questions an employee to obtain information which could be used as a basis for discipline or asks an employee to defend his/her conduct. If an employee has a reasonable belief that discipline or discharge may result from what s/he says, the employee has the right to request Union representation.
Examples of such an interview are:
The interview is part of the employer's disciplinary procedure or is a component of the employer's procedure for determining whether discipline will be imposed.
The purpose of the interview is to investigate an employee's performance where discipline, demotion or other adverse consequences to the employee's job status or working conditions are a possible result.
The purpose of the interview is to elicit facts from the employee to support disciplinary action that is probable or that is being considered, or to obtain admissions of misconduct or other evidence to support a disciplinary decision already made.
The employee is required to explain his/her conduct, or defend it during the interview, or is compelled to answer questions or give evidence.
It is an obligation of the Union to educate bargaining unit employees about their Weingarten rights BEFORE an occasion to use them arises. An employee must state to the employer that he/she wants a Union representative present; the employer has no obligation to ask: the employee if she/he wants a representative.
When an investigatory interview occurs, the following rules apply:
Rule 1 - The employee must make a clear request for Union representation before or during the interview. The employee can't be punished for making this request.
Rule 2 - After the employee makes the request, the supervisor has 3 options. S/he must either:
a. Grant the request and delay the interview until the Union representative arrives and has a chance to consult privately with the employee: or
b. Deny the request and end the interview immediately; or
c. Give the employee a Choice of: 1)having the interview without representation or 2) ending the interview
Rule 3 - If the supervisor denies the request and continues to ask questions, this is 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. Leaving before this happens may constitute punishable insubordination.
Union Representative's Rights Under Weingarten
You are not required to merely be 'silent witness'. You have the right to:
be informed by the supervisor of the subject matter of the interview
take the employee aside for a private conference before questioning begins speak during the interview
request that the supervisor clarify a question so that what is being asked is understood
give employee advice on how to answer a question
provide additional information to the supervisor at the end of the questioning.
You do not have the right to tell the employee not to answer nor, obviously, to give false answers. An employee can be disciplined for refusing to answer questions.
A standard statement to suggest to members is:
"If this discussion could in any way lead to my being disciplined or discharged, request that my Union representative be present at the meeting. Without representation, I choose not to answer any questions."
The employer will be ordered to cease and desist and to post a notice. Discipline that is imposed for insisting on Weingarten rights will be overturned. Discipline will not be overturned if the discipline was for reasons other than insistence on Weingarten rights. Although information gained by the Employer from the employee in a meeting during which a breach of Weingarten rights occurred, may be excluded from a hearing on the matter.
An employee has NO right to the presence of a Union representative where:
The meeting is merely for the purpose of conveying work instructions, training, or communicating needed corrections in the employee's work techniques.
The employee is assured by the employer prior to the interview that no discipline or employment consequences can result from the interview.
The employer has reached a final decision to impose certain discipline on the employee prior to the interview, and the purpose of the interview is to inform the employee of the discipline or to impose it.
Any conversation or discussion about the previously determined discipline which is initiated by the employee and without employer encouragement or instigation after the employee is informed of the action.
Even in the above four (4) circumstances, the employee can still ask for representation. Most employers will permit a representative to attend even when not required to.
The Back Story
J. Weingarten, Inc. operated a large chain of convenient stores, several of which allowed customers to purchase packaged meals. In June 1972, Ms. Leura Collins, a lunch-counter clerk at Store No. 98 in Houston, Texas, was called into the manager's office and interrogated by her manager and a loss prevention investigator employed by the store. Unknown to Ms. Collins, this investigator had been observing her for the past two days on the basis of a report that she was stealing from the register. Although this particular investigation uncovered no evidence of wrongdoing on Ms. Collins' part, another manager learned (from a coworker) that she "had purchased a [$2.98] box of chicken ... but had placed only $1.00 in the cash register."
During the interview, Ms. Collins, a member of Retail Clerks Local Union No. 455, requested several times that her steward or another union representative be present. When questioned about the chicken, Ms. Collins replied that she only took a dollar's worth, but was forced to use a large-size box since the small ones were not available. The investigator went to confirm this; upon his return he "told Collins that her explanation had checked out [and] that he was sorry if he had inconvenienced her, and that the matter was closed."
It was at this point that Ms. Collins finally broke down, exclaiming that the only thing the company ever gave her was a free lunch. Hearing this, the manager and the investigator were surprised, since Store No. 98 had no such policy. Once again Ms. Collins was interrogated, once again she requested representation and once again it was denied. The investigator then asked her to sign a statement that claimed she owed the company $160 for those "free" lunches. She refused. In Store No.2, where she had previously worked [1961-1970], free lunches were policy. It was later learned that other J. Weingarten employees, including the manager, took "free" lunches, since the company had no official policy that forbade it, a fact confirmed to the investigator who then ended the interview.
Upon leaving, Ms. Collins was asked by the manager "not to discuss the matter with anyone because he considered it a private matter between her and the company [and] of no concern to others." However, Ms. Collins reported this incident to her union and an unfair labor charge was filed.
The Occupational Safety and Health Act (OSHA) is the main federal law that gives most workers in the US some basic rights at work. Workers have a right to a safe workplace –- work that does not make them hurt or sick. You usually can't sue your boss over hazards, you have to use health and safety laws and enforcement -- or pressure him by taking a stand with your co-workers.
The Occupational Safety and Health Administration (also called OSHA) has written rules on many specific hazards. OSHA takes complaints from workers and unions and inspects workplaces.
You have a right to:
a workplace with no recognized hazards
equipment that makes your job safe
get information about hazards and injuries
training on how to work safely
file an OSHA complaint
participate in an OSHA inspection of your workplace
protection from discrimination for using your OSHA rights
Get help in protecting your OSHA rights from:
Occupational Safety and Health Groups
Your union, if you have one.
You have a right to a workplace with no recognized hazards. When your boss knows that something is dangerous, it must be fixed. You have a right to complain to your boss about unsafe conditions. If you don't report hazards and injuries, your boss can say he didn’t know about the danger.
You have a right to equipment which makes your job safer. You have to be given personal safety gear and the equipment you use should be as safe as possible. You should not have to pay for personal safety equipment (eye protection, helmets, chain gloves, etc).
You have a right to get information about:
injuries and illnesses that happened at work to co-workers or past employees
citations that OSHA issued to your employer for unsafe situations (it should be posted near the place of the violation)
your medical records
the results of any tests which have measured workers' exposure or hazards (like chemicals, noise, or radiation levels). You also have a right to watch the monitoring or testing as it is being done
chemicals used at work, including:
Material Safety Data Sheets (MSDS) on any chemical at your work;
labels on every chemical, so you know exactly what they are;
training on the chemicals you work with, so you know how they can effect your health and how to protect yourself
You have a right to training about how to work safely. You must be trained on how the hazard (like chemicals or machines) can hurt you and how to make your work safer.
You have a right to file an OSHA complaint about unsafe working conditions or other violations of your OSHA rights. You can tell OSHA not to tell your employer your name. You can make a complaint by telephone, in writing, or over the internet. You also have a right to make a complaint to other government agencies, like the fire department.
You have a right to participate in an OSHA inspection of your workplace. When OSHA inspectors are at your workplace, you can point out hazards, answer questions honestly, or ask them questions. You can participate in the opening and closing conferences and in an inspection that happens because you filed a complaint.
You should not be discriminated against for protecting your health and safety. OSHA tries to protect workers when they are standing up for a safe workplace. OSHA also lets you file a complaint without giving your name to your boss, if you're worried about retaliation. You have to file a discrimination complaint with OSHA within 30 days if anything bad happens because you tried to make work safer. Examples of discrimination include if you are treated worse than other workers, have your pay or hours cut, or are assigned bad work or shifts.
It is illegal for your boss to retaliate or discriminate against you for using your OSHA rights. To show that your boss discriminated against you, you have to show that
you were involved in an OSHA activity (filing a complaint, testifying, participating in an OSHA inspection, or talking with an investigator); AND that
your boss knew that you did it; AND that
because of what you did, your boss did something which made your work worse (like being transferred to a worse job or shift, having your pay or hours cut, being treated worse than other workers).
You have to file a retaliation complaint within 30 days of when your boss did it. This is one of the shortest times any agency gives a worker to file a complaint. It should be longer, so file quickly.
You have the right to be involved in your union.
Every union member has equal rights to participate in union business and activities. You cannot be kept out of meetings which are open to union members and you cannot be told that you cannot speak when other members can. You can oppose union leadership. You have freedom of speech within the union. You can say what you think about dues - how they are spent and how they are set.
You have the right to participate in union elections. Union members have the right to nominate candidates for office, run for office, vote by secret ballot, and protest an election that wasn’t run fairly.
You have the right to get your union contract. Union members or non-members who are covered by the contract have a right to a copy of their union contract.
You have the right to get the union's By-laws and Constitution. Union members (or workers covered by a union contract) need to understand the rules about the running of the union in the union's constitution and bylaws, such as how and when elections are held and if workers have to vote to approve a new contract.
You have the right to see the union's financial reports. Unions must file financial reports every year with the U.S. Department of Labor. The union must let members see the reports and the supporting records.
You have the right to be represented fairly. This is called the Duty of Fair Representation. The union has to investigate a grievance and cannot neglect it. Representatives of the union (elected leaders, staff, and shop stewards) can't discriminate against a worker because of union politics (for example, because a worker spoke out against something the union was doing or supported another candidate in a union election). The union cannot play favorites. They must represent every worker who is covered by the contract -- members and non-members. The union cannot make a non-member join in order to represent her grievance or discipline case. Unions have to give a reasonable level of representation, but the standard is pretty low. Making a mistake or missing a deadline does not automatically mean that the duty of fair representation is violated. It does not mean that the union has to process every complaint as a grievance or that every grievance has to go to arbitration. They should be able to explain why they have decided not to pursue the grievance. The National Labor Relations Board (NLRB) administers the law or workers can sue the union. There are also federal laws that unions cannot discriminate because of race, religion, national origin, handicap, age, or sex. If your union will not file your grievance, ask the union to explain why they refused. Sometimes talking with someone else in the union (like the President, Vice President, or a member of the Executive Board) helps. You can remind the union of their Duty of Representation. If the union still will not file your grievance, you can file it yourself. Read your contract to find out how.