DURING COMPANY INTERROGATIONS)
One of the most vital functions of a Union steward is to
prevent management from intimidation employees.
Nowhere is this more important than in closed-door meetings when
supervisors, or guards, often trained in interrogation techniques, attempt to
coerce employees into confession to wrongdoing.
The rights of employees to the presence of union
representatives during investigator interviews was announced by the U.S.
Supreme Court in 1975 in NLRB vs. J. Weingarten, Inc. Since that case involved a clerk being
investigated by the Weingarten Company, these rights have become known as Weingarten
Unions should encourage workers to assert their Weingarten
rights. The presence of a steward
can help in many ways. For example:
The steward can help a fearful or inarticulate
employee explain what happened.
The steward can raise extenuating factors.
The steward can advise an employee against
blindly denying everything, thereby giving the appearance of dishonesty and
The steward can help prevent an employee from
making fatal admissions.
The steward can stop an employee from losing his
or her temper, and perhaps getting fired for insubordination.
The steward can serve as a witness to prevent
supervisors from giving a false account of the conversation.
NOTE: the NLRB does generally not defer Charges alleging a
violation of Weingarten rights. Nor are
violations considered “de minimus” even if no employee is disciplined.
WHAT IS AN
Employees have Weingarten rights only during
investigatory interviews. An
investigatory interview occurs when a supervisor questions an employee to
obtain information that could be used as a basis for discipline or asks an
employee to defend his or her conduct. If
an employee has a reasonable belief that discipline or other adverse
consequences may result from what he or she says, the employee has a right to
request union representation.
Investigatory interviews usually relate to subjects such as:
damage to company property
falsification of records
violation of safety rules
Shop-floor conversations. Not every management-initiated discussion is
an investigatory interview. For example,
a foreman may talk to a worker about the proper way to do a job. Even if the boss asks questions, this is not
an investigatory interview because the possibility of discipline is
remote. The same is true of routine
conversations to clarify work assignments or explain safety rules.
Nonetheless, even ordinary shop-floor discussions can change
its character if the supervisor is dissatisfied with the employee’s
answers. If this happens, the employee
can insist on the presence of a union representative before the conversation
goes any further.
Disciplinary announcements. When a supervisor calls a worker to the
office to announce a warning or other discipline, is an investigatory interview
affording the worker a right to union representation? The NLRB says no, because the employer is
merely announcing a previously arrived-at decision and is not questioning the
worker. Such a meeting however can be transformed
into an investigatory interview if the supervisor begins to ask questions to
support the decision.
NOTE: An employer
that has followed a past practice of allowing stewards to be present
when supervisors announce discipline must maintain the practice during the
contract term. Refusing to allow a
steward to attend would constitute an unlawful unilateral change.
Under the Supreme Court’s Weingarten decision, 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 cannot be punished for making
RULE 2: After the employee makes the request, the
employer must choose from among three options. The employer must either:
the request and delay questioning until the union representative
arrives and has a chance to consult privately with the employee; or
the request and end the interview immediately; or
the employee a choice of:
the interview without representation; or
RULE 3: If the employer denies to request for union
representation, and continues to ask questions, it commits an unfair labor
practice and the employee has a right to refuse to answer. The employer may not discipline the employee
for such a refusal.
RIGHTS OF STEWARDS
Employers often assert that the only role of a steward at an
investigatory interview is to observe the discussion, in other words to be a silent
witness. The Supreme
Court, however, clearly acknowledged a steward’s right to assist and counsel
workers during the interview.
Decided cases establish the following procedures:
the steward arrives, the supervisor must inform the steward of the subject
matter of the interview, i.e., the type of misconduct for which discipline
is being considered (theft, lateness, drugs, etc.).
steward must be allowed to take the worker aside for a private
pre-interview conference before questioning begins.
steward must be allowed to speak during the interview. However, the steward does not have the
right to bargain over the purpose of the interview.
steward can request that the supervisor clarify a question so that the
worker can understand what is being asked.
a question is asked, the steward can give advice on how to answer.
the questioning ends, the steward can provide additional information to
It must be emphasized that if the Weingarten rules
are complied with, stewards have no right to tell workers not to answer
questions, or to give false answers.
Workers can be disciplined if they refuse to answer questions.
You may be familiar with the “Miranda warnings” given by the
police. The Miranda warnings notify
criminal suspects of their rights, including the right to a lawyer and to remain
silent. Unfortunately, the Supreme Court
did not impose a notice requirement in its Weingarten decision. Employers have no obligation to inform
workers of their right to request union representation. THIS IS THE UNION”S JOB.
Unions should explain Weingarten rights at meetings
and in newsletters. A good way to get
the word out is to distribute wallet-size cards saying the following:
“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 the meeting.
Without representation, I choose not to answer any questions.”
On the other side of the card, print information about the
union, such as office address, telephone number, and the names of
officers. Tell members to present the
card whenever they fear that what they say may affect their position.
QUESTIONS AND ANSWERS FOR STEWARDS
- If I
see a worker being interviewed in a supervisor’s office, can I demand to
attend the meeting?
- Yes. A steward has a protected right to
demand admission to a Weingarten interview. However, once the request is made, the
employee being interviewed must indicate a desire for your presence. If the employee states that he or she
wishes to be interviewed alone. The
steward must leave.
An employee was summoned to an interview with his
foreman and asked for his steward. In
response, the foreman said, “You can request your steward, but if you do, I
will have to bring in the plant manager, and you know how temper mental she
is. If we can keep it at the level we’re
at, things will be a lot better for you.”
- Yes. The foreman is threatening greater
discipline to coerce the employee into abandoning his Weingarten
rights. This is an unfair labor
employee was ordered by her foreman to go to the personnel office for a
“talk” about her attitude. She
asked to bring a union representative but the foreman said she would have
to make her request when she got to the office. Can she refuse to go to the office?
- No. Weingarten rights do not begin
until the actual interview begins.
The employee must go to the office and repeat her request to the
official conducting the interview.
Only, if a supervisor makes clear in advance to an employee that he
or she intends to conduct an investigatory interview without union
representation, does an employee have a right to refuse to go to a
company is recalling working from a layoff and is insisting on medical
examination for those out of work three months or more. Can the workers demand a steward’s
presence during the examination?
- No. Medical examinations are not
Weingarten rights do not apply.
Weingarten rights apply to a polygraph examination?
- Yes. An employee has a right to union
representation during the pre-examination interview and the examination
management asks a worker to submit to a urine test for dregs, does Weingarten
Yes and no.
Since a urine test is not questioning, an employee does not have right
to the presence of a steward during the actual test. Management must, however, allow the employee
to consult with a union representative to decide whether or not to take the
management order a worker to open a locker without a steward being
- Yes. Locker searches, car searches, or
handbag searches are not interviews.
Employees do not have a right to insist on the presence of a
employee was given a written warning about poor attendance and told he
must participate in absence-counseling sessions with a member of the
personnel department. Does the
worker have the right to demand the presence of a union steward at the
depends on whether the employee has a reasonable fear that the counseling
sessions could result in further discipline. If notes from the session are kept in
the employee’s permanent record, or if other employees have been
disciplined after counseling sessions, the employee’s fears would be
reasonable and would entitle him to bring a steward. But if the employer gives firm
assurances that the meetings will not be used for further discipline and
promises that the conversations will remain confidential, Weingarten
probably would not apply.
- If a
worker is given a warning slip for misconduct and is asked to sign the
slip to acknowledge receipt, must the employer permit her to consult her
steward before signing?
- No. Since the employer is not questioning
the worker, Weingarten rights do no apply.
- Can a
worker insist on the presence of a lawyer before answering questions at an
- No. Weingarten rights apply only to
the presence of union representatives.
the weekend, a foreman called a worker at home to ask questions about
missing tools. Did the worker have
to answer the questions?
- No. Weingarten rights apply to
telephone interviews. A worker who
fears discipline can refuse to answer questions until he or she has a
chance to consult with their steward.
Q. A worker was called into the manager’s
office. She asked for her steward, but
was refused. The manager said, “Doreen, yesterday you refused a direct order
to work overtime. Therefore, we’re
giving you a one-day suspension for insubordination.” Did the company violate Weingarten?
A. No. Weingarten
rights do not apply to meetings employers simply announcing discipline. However, if the employer starts asking
questions or tries to make the employee admit guilt, Weingarten would
apply and the employee can insist on the presence of a steward or other union
representative before answering.
Q. If a worker’s steward is out sick, can the
worker insist that the interview be delayed until the steward is available?
Management does not have to delay an investigation if other union
representatives are available to assist the employee at the interview.
Q. If a steward is called in by his/her foreman
to discuss his/her work record, does he/she have the right to a union
Union stewards have Weingarten rights. If you fear discipline or other adverse
actions, you have the right to the presence of a union representative.
Q. Suppose a worker’s request for a steward is
denied. If the supervisor continues to
ask questions, can the worker walk out of the office to get a steward?
A. In some
cases, yes. According to NLRB decisions,
when an employee is entitled to union representation and the employer denies
the employee’s request, the employee can refuse to participate in the
interview, even to the point of walking out to seek a union representative.
Q. If the company calls a meeting to lecture
workers about job performance, do the employees have a right to demand the
presence of a union representative before attending the meeting?
Holding a meeting on work time that does not involve interrogation is
not a Weingarten meeting. There is no
right to a steward unless the employer begins asking questions of employees in
a manner that creates a reasonable fear of discipline.
Q. If management refuses an employee’s request
for union representation, gets the employee to confess to theft, and then fires
the employee, will the NLRB order the worker to be reinstated?
A. Probably not.
The NLRB used to order the reinstatement of employees who were fired as
a result of admissions during an illegal interview. But in 1984 the Board ruled that such a
penalty was an unwarranted “windfall” for guilty workers. The standard Weingarten penalty is now
limited to a bulletin board posting in which the employer promises not to
repeat its violations.