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. 420 U.S. 251, 88 LRRM
2689). These rights have become known as the Weingarten rights.
Employees have Weingarten rights only during investigatory interviews.
An investigatory 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 employees responsibility to know
When the employee makes the request for a union representative to be present
management has three options:
(I) it can stop questioning until the representative arrives.
(2) it can call off the interview or,
(3) 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 (an
option the emplovee should always refuse.)
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 can not tell the employee
what to say but he may advise them on how to answer a question. At the end
of the interview the union representative can add information to support the
On June 15, 2004, The National Labor Relations Board ruled
by a 3-2 vote that employees who work in a nonunionized workplace are not entitled
under Section 7 of the National Labor Relations Act to have a coworker accompany
them to an interview with their employer, even if the affected employee reasonably
believes that the interview might result in discipline.
This decision effectively reversed the July 2000 decision of the Clinton Board
that extended Weingarten Rights to nonunion employees.