Weingarten Rights

First articulated by the United States Supreme Court in the case, National Labor Relations Board (NLRB) v. J. Weingarten, Inc (1975), Weingarten rights are a right for employees within a recognized bargaining unit to a union representative during a meeting they reasonably believe may lead to the imposition of disciplinary action, typically an investigatory interview.  The Court found that Section 7 of the National Labor Relations Act of 1935 (NLRA) protects employees who refuse to submit to certain interviews without a requested representative present.  Weingarten rights only apply to private sector union-represented employees covered by the NLRA, unless a contract term specifically establishes otherwise.

Among other attributes, Section 7 of the NLRA protects union represented employees rights to "self-organization"and "mutual aid and protection."  An employee must invoke their Weingarten rights, and therefore must be informed of and empowered to express them.  Such assertion is a conventional example of workplace democracy, and a test for newly organized workers and employers who may have covert interests in union busting or in chilling workplace advocacy.  Daugherty's seven tests of just cause include tests of an employer's investigation and the fairness of such.  A Weingarten interview relates to both.

Weingarten rights may be invoked when an employer's interest to investigate an employee is established directly or indirectly.  The quality of routine discussion may become questioning and pertain to an investigation into the employee’s performance or work conduct.  For instance, management may require an employee to defend, explain, or admit misconduct or work performance issues that may form the basis for discipline or discharge.  

A Weingarten interview may not result in the imposition of discipline, and routine meetings with supervisors are generally not prompts for represented employees to invoke their Weingarten rights.  Though if specific conditions are met, any meeting with a supervisor could establish a premise.  Employees may not request a non-employee representative, unless that person is an officer or agent of the union.  Weingarten rights do not apply to private attorneys or family members.  

Weingarten representatives serve as advisors, and witnesses.  Representatives have a right to know the subject matter of the meeting, and be provided time to meet with the employee before it begins.  If an employee invokes their Weingarten rights and a representative of their choice is not immediately available, the employer may choose to delay the meeting; end the interview; or allow the employee to choose between waiving their right to a representative or ending the interview.  It is illegal, an unfair labor practice, for an employer to continue questioning an employee without their representative present.  

An employee's representative also has specific rights within a Weingarten setting, and the expression of such may vary depending on the immediate circumstances between the employer, representative, and employee.  A representative may ask the employer to clarify questions, give the employee advice on how to answer questions (within limits, they are not permitted to tell them what to say), and provide additional information to the employer after the questioning.  A union representative may also object to questions if they are badgering, intimidating, or offensive.  An employer may lawfully remove a union representative from such meeting if they engage in disruptive or hostile behavior.

With Weingarten rights and without just cause, an employee may still be discharged without any cause or prior notice.  An employer may test the limits of what constitutes prior notice of the subject matter of an investigation, obstruct or frustrate a representative's speech and presence, or engage in a line of questioning that is badgering, intimidating, or offensive.  Weingarten rights are a significant right of organized labor, but are limited in their application and vary in practice without more robust standards of just cause, due process, job security.