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Weingarten Rights

The Right to Request Representation During an Investigatory Interview

Section 7 of the National Labor Relations Act (NLRA) protects employees’ right to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection”

Among the rights protected by Section 7 is the right of employees, upon request, to have their representative present during an interview that the employee reasonably believes could lead to discipline.  This right was first articulated by the Supreme Court in the case, NLRB v. J. Weingarten, Inc.  In that case, the Court found that Section 7 of the NLRA protects employees who refuse to submit to certain interviews without a requested representative present. While under current Board law, only union-represented employees have this right, the NLRB General Counsel is asking the Board to return to its previous rule that all employees have the right, whether represented by a union or not.

An employee’s requested representative, which may be a union steward, business agent or officer, or fellow employee, is often referred to as a “Weingarten representative.”  Weingarten representatives are entitled to provide advice and active assistance to employees during investigatory interviews.  Employees’ right to request their representatives are frequently referred to as “Weingarten rights.” 

Employers violate the NLRA if they proceed with an investigatory interview while refusing an employee’s request or retaliate against them for making the request.  Depending on the circumstances of each case, the Board may order that the employer cease and desist, post a remedial notice, require the employer to repeat the interview with a union member present, or rescind and remedy discipline resulting from a Weingarten violation. 

When do employees have a right to request a union representative? 

An employee’s right to request a representative arises during an investigatory interview.  A useful comparison is an individual’s Miranda right to an attorney when questioned by law enforcement.  However, unlike the right to counsel in a Miranda setting, employers are not required to inform union members of their rights under Weingarten.

Any meeting may be an “investigatory interview” provided that the following occurs:

  • A manager, representative of management, or supervisor is seeking to question an employee.  
  • The questioning is part of an investigation into the employee’s performance or work conduct.  During an investigatory interview, a representative of management may require an employee to defend, explain, or admit misconduct or work performance issues that may form the basis for discipline or discharge.  
  • The employee reasonably believes that the investigation may result in discharge, discipline, demotion, or other adverse consequence to their job status or working conditions.  
  • The employee requests a union representative.  Employers are not required to advise employees of their right to representation and third parties (including union representatives) may not make the request on behalf of the employee.

When making a request for a representative, the Board does not require that the employee specify that they need a “Weingarten” representative.  Once an employee requests their representative, they are not required to repeat that request.

At times, it is not clear whether a meeting is investigatory or could lead to discipline.  In those cases, the National Labor Relations Board (NLRB) looks to the conduct of the meeting and the surrounding circumstances to determine if there was an investigatory purpose.  The Board will consider such factors as the identity/status of the participants, the parties’ collective-bargaining agreement and disciplinary practices, whether there was a confrontational tone to the meeting, any notices or warnings issued prior to the meeting, or whether employees had been disciplined for similar misconduct.