EMPLOYEE'S RIGHT TO UNION
The rights of employees to have present a union
representative during investigatory interviews were 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
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 and request.
When the employee makes the request for a union
representative to be present management has three options:
(1) it can stop questioning until the representative
(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
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 employee's case.
On July 10, 2000, in one of the most significant
labor decisions of the Clinton era, the National Labor Relations Board
extended to nonunion employees the right, already held by union
employees, to bring along a co-worker to a disciplinary meeting with
While a challenge is likely, the appeals process could
take months or years. Still, it is unclear whether the decision will
result in big changes in the American workplace, where roughly 85% of
workers aren't represented by a union.
The five-member board overruled a decision in Epilepsy
Foundation of Northeast Ohio and Arnis Borgs and Ashraful Hasan (331
NLRB No. 92). The administrative law judge in that case said a
1975 Supreme Court decision. NLRB v. Weingarten, 420
US 251. granted union employees the right to bring a co-worker to
disciplinary meetings with employers. But. citing NLRB precedent. he
also ruled that nonunion employees don't have so-called Weingarten
NLRB members John C. Truesdale, Sarah M. Fox and Wilma B.
Liebrnan said the precedent "misconstrued the language" of Weingarten.
While the Weingarten case involved a union representative, the
majority decided that the court's ruling was based on a section of
employment law that says employees have the right to "mutual aid
"This rationale is equally applicable ... where
employees are not represented by a union," the decision states.
(Thanks to the University of Hawaii, Center for Labor Education and