Weingarten and how it came to be
NLRB v. Weingarten, Inc. 420 U.S. 251 (1975):
The employer violated [Section] 8 (a) (1) of the National Labor Relations Act because it interfered with, restrained, and coerced the individual right of an employee, protected by [Section] 7, “to engage in … concerted activities for … mutual aid or protection,” when it denied the employee’s request for the presence of her union representative at the investigatory interview that the employee reasonably believed would result in disciplinary action.
Weingarten Rights. Most union members have heard this term. Many shop stewards have the right to protect their members because of it. But what is the origin of these rights? What lies behind one of the most significant labor law rulings in recent history? For thirty years, Weingarten has been an often-used word in the vocabulary of union advocates.
Here is the story:
- 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.
One vital function of the steward is to prevent an employer from coercing or intimidating employees into confessing misconduct, especially in situations where the supervisor (or any other employer representative) engages in interrogatory techniques.
The NLRA protects union concerted activities, which includes a member’s right to request union representation during investigatory interviews. This right was recognized in 1975 with the U.S. Supreme Court’s ruling in NLRB v. J. Weingarten. (420 U.S. 251)* and became known as a member’s Weingarten Right.
*Note: This opinion was delivered by Justice William Brennan and was joined by Justices Douglas, White, Marshall, Blackmun and Rehnquist [the current Chief Justice]. The dissenting opinion was filed by Chief Justice Warren Burger and joined by Justice Powell.
A lone employee, confronted by the employer’s investigation and the possibility of discipline, may be either too afraid to face accusations, too inarticulate to accurately explain, or simply to uniformed to raise extenuating factors. A knowledgeable union representative could assist this employee by drawing out favorable facts or applicable mitigating circumstances.
A tangible knowledge of Weingarten is vital, since it allows the steward to:
- Serve as a (non-silent) witness to this interview
- Contradict a supervisor’s possibly false account of said interview
- Prevent intimidating tactics or confusing questions by supervisor
- Prevent the member from making self-incriminating statements or admissions
- Advise the member, under certain circumstances, to deny everything
- Warn the member about losing his or her temper
- Discourage the member from informing on others, i.e., co-workers
- Identify any extenuating or mitigating factors that could benefit the member
The Investigatory Interview
Weingarten Rights can be invoked ONLY in an investigatory interview, which occurs when:
- Employer Representatives (Supervisor, Manager, et. al.) question an employee about specific conduct or to obtain information that could be used as a basis for discipline.
- As a result of the above, the employee has a reasonable belief that the interview could result in discipline or some other adverse consequence. Example: an employee being questioned about an accident would be justified in fearing that he or she might be blamed.
Of course, not every interaction between employee and supervisor is an investigatory interview; for example, a supervisor speaking to a subordinate about a particular job performance. While the supervisor may no doubt question the worker about his or her performance, the likelihood of discipline is not the issue. Both parties are merely engaged in a work-related conversation – there is no investigation.
However, this workshop conversation could suddenly acquire an entirely different demeanor should the supervisor becomes hostile or the questioning turns into suspicion. In this case, any employee may become fearful; at this point would require union representation.
Yet, when a supervisor (or any agent of the employer) calls an employee into the office to warn, reprimand or impose discipline already decided, this is not – according to the NLRB* – an investigatory interview, since employee conduct is not being questioned, but rather has been observed and is being acted upon.
* Baton Rouge Water Works, 246 NLRB 995 (1979)
Unlike Miranda, another landmark Supreme Court case, Weingarten does not require notice at the time of questioning – or, in this case, an investigatory interview. This means that the Employer is not required to inform the employee that he or she has a right to Union representation. For the union and the steward, this means educating their membership by explaining these rights. Many local union contracts contain Weingarten in their language, such as this example:
The employer recognizes the employee’s right to be given representation by a steward, or a designated alternate, at any investigatory interview. The employer will remind the employee of this right at the time that the employer requests the investigatory interview.
Many local unions provide their members with wallet-sized cards that read:
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.
Weingarten and Public Employees
The original applications of Weingarten covered only those employers under the National Labor Relations Act; therefore, it did not address public employers. However, each state has its own laws for public sector employees – and, each state will have different views on the right to union representation. For example, California public employees have the same rights during an investigatory interview, as do private sector employees. In any case, public sector employees are protected by the due process tenets provided in the Fifth and Fourteenth Amendments of the U.S. Constitution.
Note: Weingarten Cards (English and Spanish) can be ordered through the Teamsters Education Department.
KNOW YOUR RIGHTS!
Your Rights during Investigatory Interviews with the Company.
The National Labor Relations Act (NLRA) gives employees the right to assistance from union representation during investigatory interviews. Although not explicit in the Act, the right was declared by the US Supreme Court in 1975 in NLRB vs. J. Weingarten, Inc. The rules the court announced are known as Weingarten rights.
Employees sometime confuse the Weingarten rules with the Miranda rules. However there is a big difference in the two rules. Under Miranda rules police who question criminal suspects MUST notify them of their right to remain silent and to have an attorney present during questioning. Under Weingarten employers have NO obligation to inform the employees of their rights to union representation. The employee must ask for union representation in such meetings
An investigatory interview occurs when:
- Management questions an employee to obtain information and
- The employee has a reasonable belief that discipline or other adverse consequence may result from what he or she says.
Investigatory interviews relate to such subjects as:
- compliance with work rules
- damage to company property
- falsification of records
- lateness, poor attitude
- poor work performance
- violations of safety rules
Not every discussion with management is an investigatory interview. For example, a supervisor may speak to an employee about the proper way to do a job. Even if the supervisor asks the employee questions, this is not an investigatory interview as the use or possibility of discipline is remote.
However a routine conversation changes character if a supervisor becomes dissatisfied with an employee’s answers and takes a hostile attitude. If this happens, the meeting becomes an investigatory interview and Weingarten rules apply.
When a supervisor calls and employee to the office to announce a warning or other discipline that has already been decided it is not an investigatory meeting since the supervisor is just informing the employee of a previously arrived-at decision. Such a meeting becomes an investigatory interview, however, if the supervisor asks questions that are related to the subject matter of the discipline.
Having a steward present can help in many ways. The steward can:
- Serve as a witness to prevent supervisors from giving a false account of the conversation
- Object to intimidating tactics or confusing questions
- Advise (when appropriate) and employee against blindly denying everything. Thereby giving the appearance of dishonesty and guilt.
- Help an employee to avoid making fatal admissions.
- Warn an employee against losing his or her temper.
- Raise extenuating factors
The Employee Rights under Weingarten rules are as follows:
- The employee may request union representation before or during the interview. Remember the company does not have to offer union representation.
- After the request, the employer must choose from among three options.
- Grant the request and delay questioning until the union representative arrives.
- Deny the request and end the interview immediately.
- Give the employee a choice of:
- Having the interview without representation (usually a mistake or the wrong choice) or
- Ending the interview (best choice if no union steward is coming)
If the employer denies the request for union representation and questions the employee, it commits an unfair labor practice and THEN the employee may refuse to answer.
Although some supervisors sometimes try to assert that the only function of a steward at an investigatory interview is to observe the discussion in other words be a SILENT witness this is WRONG. The steward has the right to counsel the employee during the interview and to assist the employee to present the facts. Legal cases have established the following rights and obligations of the steward.
- When the steward arrives, the supervisor must inform the employee and the steward of the subject matter of the interview: for example, the type of misconduct, which is being investigated. (The supervisor does not, however, have to reveal management’s entire case.)
- The steward can take the employee aside for a private pre-interview conference before the questioning begins.
- The steward can speak during the interview. (But, the steward has no right to bargain over the purpose of the interview or to obstruct the interview.)
- The steward can advise the employee not to answer questions that are abusive, misleading, badgering, confusing or harassing.
- When the questioning ends, the steward can provide information to justify the employee’s conduct.
If called to a meeting with management, read the following statement to management BEFORE the meeting starts!!
“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. Without representation present, then…
I choose not to participate in this discussion.”
CWA Local 9421
2725 El Camino Avenue
Sacramento, California 95827
“Labor is prior to, and independent of, capital. Capital is only the fruit of labor, and could never have existed if Labor had not first existed. Labor is superior to capital, and deserves much the higher consideration.”