Main Menu
The Management Memo - Weingarten Rights

Greenebaum Doll & McDonald is proud to present the Management Memo, a quarterly publication dedicated to providing a management-oriented analysis of what we see as interesting labor issues. 

 In this introductory issue, the Management Memo addresses the rights of union-represented employees to the presence of union representatives during investigatory interviews.  We hope that you find this new series helpful and informative.

Weingarten Rights

The following situation should be familiar to most management officials in companies with union-represented employees:  It has come to your attention that an employee has violated a work rule, and you need to find out what happened.   One of your employees has information that could be critical to your investigation, and you have called him or her into your office for questioning. 

Before you ask any questions, you need to know the extent of the employee’s “Weingarten rights.”  In NLRB v. J. Weingarten, Inc., the Supreme Court held that during certain investigatory interviews, union-represented employees have the right to the counsel of a union representative.  According to the Supreme Court, this right arises out of employees’ right under Section 7 of the National Labor Relations Act to act in concert for mutual aid and protection.  Most collective bargaining agreements also set forth these rights. 

Critics have described Weingarten rights as a “dangerous anachronism that looms in the darkness waiting to consume the employer with costly and needless litigation.”  While this may sound deterring, managers who familiarize themselves with the scope of Weingarten rights will have no trouble conducting effective investigatory interviews without running afoul of the National Labor Relations Act.      

When do Weingarten rights arise?

Weingarten rights arise under the Act when four elements exist.  First, a management party must be questioning an employee.  Any type of questioning is covered, from a brief discussion with an employee to a closed-door meeting.  Second, the employee must be represented by a labor union.  Under the current state of the law, employees who work in non-unionized workplaces do not have Weingarten rights.  Third, the employee must clearly request a union representative.  Management parties are not required to inform employees of their Weingarten rights and if the employee does not request a representative, there will be no violation.  The employee may make this request at any time prior to or during the questioning.  Finally, Weingarten rights only exist where the employee reasonably believes that the interview could result in discipline for himself or another employee.  If management has called the meeting simply to inform the employee that he has been disciplined, the employee does not have any Weingarten rights.  

  

Weingarten rights in the arbitration setting

While the National Labor Relations Board (Board) will address most Weingarten violations, it is not uncommon for arbitrators to adjudicate these issues.  Most arbitrators have held that the “just cause” standard contained in most collective bargaining agreements includes an implied right to representation in disciplinary interviews; therefore union members may also seek remedies through the grievance-arbitration process.  If a union member contemporaneously files a Board charge and submits a grievance based on an alleged Weingarten violation, the Board may elect to defer to the arbitrator’s resolution of the issue.


When arbitrators address Weingarten and Weingarten-type violations, they typically apply the same rules as the Board, unless the applicable CBA language provides otherwise.  It is not uncommon for a CBA to require an employer to notify an employee of his or her right to a union representative, and to provide that an employee cannot waive this right.  In the absence of unique contract language, arbitrators have traditionally followed Board law when determining in what situations employees have the right to union representatives, and when determining the scope of these rights.  It is important to remember, though, that arbitrators will apply unique CBA provisions by their terms, regardless of the state of Weingarten law; therefore management should know when an employee is entitled to a union representative under the terms of the parties’ CBA.

Management’s rights and obligations

After the employee has requested a Weingarten representative, management has three options.  The management party may stop the questioning until the representative arrives or call off the interview altogether and conduct the investigation without an interview.   The management party also may advise the employee that it will proceed with the investigation without the interview, however, it must be cautious not to frame this statement in a manner that coerces the employee into entering the interview without a representative.  Once the representative arrives, management is obligated to inform the representative of the purpose of the interview and allow the representative to speak privately with the employee prior to the beginning of the interview.

Management may not impose or threaten to impose any discipline that is motivated by the employee’s Weingarten request.  It is a violation of the National Labor Relations Act to advise an employee that he will be disciplined if he requests a union representative, or to discipline an employee for requesting a representative.  It is also an unfair labor practice to ask any questions before the representative arrives.  However, the employee or the representative cannot exceed the scope of their Weingarten rights. 

Rights of union representatives and employees

While Courts and the Board have not specifically defined the rights of union representatives in Weingarten interviews, the range of conduct permitted by the Board and the Act lies somewhere between mandatory silence and adversarial confrontation.  Thus, the representative may do more than silently observe the interview.  Courts and the Board have recognized that union representatives may take the following actions:

  • Inquire into the purpose of the interview.
  • Speak privately with the employee prior to the interview.
  • Interrupt when necessary to clarify a question.
  • Object to confusing or intimidating tactics, or advise the employee against answering questions that are reasonably perceived to be abusive, misleading, badgering, confusing, or harassing.
  • Provide additional information to management.

The representative’s conduct is not protected if the representative interferes with the  employer’s effort to conduct a legitimate investigation.  Although the representative may advise the employee on how to answer a question, he may not tell the employee what to say.  The representative also may not advise the employee against answering a legitimate question, even if it has already been answered.  Finally, the representative must remain civil and refrain from hostile or adversarial behavior.  If the representative engages in this type of conduct, the employer may eject him from the interview and even impose discipline.


Employees’ Weingarten rights also are not unlimited.  While an employee may refuse to answer questions until he has had a chance to confer with a representative, the employee cannot refuse to submit to an interview.  After the representative has arrived and the employee has had a chance to speak to the representative, the employee must answer management’s questions.

Available remedies

 

If an employee’s Weingarten rights are violated, the National Labor Relations Board will impose one of two remedies.  It will either enter a “cease and desist” order instructing the employer to refrain from conduct that violates employees’ Weingarten rights, or impose a “make-whole” remedy requiring the employer to make the employee whole through reinstatement and reimbursement of lost wages.  In most cases, the Board will simply issue a cease and desist order.  This remedy is appropriate if management can prove that the employee was disciplined for cause, even if management otherwise violated the employee’s Weingarten rights.  However, in situations where an employee was disciplined for asserting Weingarten rights or for engaging in conduct that occurred during an unlawful interview, the Board may issue a costly make-whole remedy.

Arbitrators have taken a different approach than the Board to remedying Weingarten violations.  While the Board will generally not issue a make-whole remedy to an employee who was discharged for cause, arbitrators have more flexibility to impose a make-whole remedy.  Arbitrators have awarded back-pay and reinstatement to employees who have been discharged for just cause when Weingarten rights were denied. 

Final advice

Keep these rules in mind the next time you conduct an investigatory interview.  Knowing the extent of employees’ and union representatives’ Weingarten rights will allow you to conduct your interviews effectively and obtain the information you need, without incurring unnecessarily and costly litigation.   

If you have questions regarding Weingarten rights, please contact any member of Greenebaum’s Labor and Employment Practice Group.


Even though the content of the above Greenebaum Doll & McDonald e-bulletin is primarily informative, state and federal law obligates us to inform you that THIS IS AN ADVERTISEMENT. You have received this advisory because you are a client or friend of the firm.

 
About Greenebaum Doll & McDonald PLLC
Greenebaum Doll & McDonald PLLC is a widely-respected business law firm with approximately 170 professionals in five offices, serving local, national and international clients in virtually every industry. A forward-thinking business law firm, Greenebaum is committed to the practice of Breakthrough Law®.

Copyright 2010 Greenebaum Doll & McDonald PLLC.  All Rights Reserved.

RSS RSS Feed

Subscribe

Recent Posts

Categories

Contributors

Archives

Back to Page