The right of employees to have union representation at investigatory interviews was announced by the U.S. Supreme Court in a 1975 case (NLRB vs. Weingarten, Inc.). These rights are known as the Weingarten rights.
Employees have Weingarten rights only during investigative interviews. An investigative interview occurs when a supervisor questions an employee to obtain information which 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 the right to request union representation. Management is not required to inform the employee of his/her Weingarten rights; it is the employee’s responsibility to know and request.
When the employee makes the request for a union representative to be present, management has three options:
- It can stop questioning until the representative arrives;
- It can call off the interview, or
- It can tell the employee that it will call off the interview unless the employee voluntarily gives up his/her rights to a union representative.
Employers will often assert that the only role of a union representative in an investigatory interview is to observe the discussion. The Supreme Court, however, clearly acknowledges a representative’s right to assist and counsel workers during the interview.
The Supreme Court has also ruled that during an investigatory interview, management must inform the union representative of the subject of the interrogation. The representative must also be allowed to speak privately with the employee before the interview. During the questioning, the representative can interrupt to clarify a question or to object to confusing or intimidating tactics. While the interview is in progress, the representative cannot tell the employee what to say, but he or she may advise them on how to answer a question. At the end of the interview, the union representative can add information to support the employee’s case.