**Handout 9-2**

The following excerpt from *The Legal Rights of Union Stewards by Robert
M. Schwartz*, (c) 1999, is reprinted with permission from the
publisher.  *The Legal Rights of Union Stewards* may be purchased at
bookstores, or by contacting Work Rights Press, at PO Box 391887,
Cambridge, MA 02139, or online at
[*[http://www.workrightspress.com/]{.underline}*](http://www.workrightspress.com/).

**Chapter 5:\
Weingarten Rights**

 (UNION REPRESENTATION DURING INVESTIGATORY INTERVIEWS)

A VITAL FUNCTION of a steward is to prevent management from coercing
employees into confessions of misconduct. This is especially important
when a worker is questioned by a supervisor experienced in interrogation
techniques.

The NLRA's protection of concerted activity includes the right to
request assistance from union representatives during investigatory
interviews. This was declared by the Supreme Court in 1975 in *NLRB v.
J. Weingarten,
Inc*[^[195]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#195).
The rights announced by the Court have become known as *Weingarten*
rights.

Unions should educate their members about the advantages of having a
steward present at an investigatory interview. These include the ability
of the steward to:

-   serve as a witness to prevent a supervisor from giving a false
    account of the conversation;

-   object to intimidation tactics or confusing questions;

-   help an employee to avoid making fatal admissions;

-   advise an employee, when appropriate, against denying everything,
    thereby giving the appearance of dishonesty and guilt;

-   warn an employee against losing his or her temper;

-   discourage an employee from informing on others; and

-   raise extenuating factors.

**WHAT IS AN INVESTIGATORY INTERVIEW?**

*Weingarten* rights apply only during investigatory interviews. An
investigatory interview occurs when: (1) management *questions an
employee* to obtain information; and (2) the employee *has a reasonable
belief that discipline or other adverse consequences may result.* For
example, an employee questioned about an accident would be justified in
fearing that she might be blamed for it. An employee questioned about
poor work would have a reasonable fear of disciplinary action if he
should admit to making errors.

**Shop-floor conversation.** Not every discussion with management is an
investigatory interview. For instance, a supervisor may speak with an
employee about the proper way to do a job. The supervisor may even ask
questions. But because the likelihood of discipline is remote, the
conversation is not an investigatory interview.

A shop-floor conversation can change its character, however. If the
supervisor's attitude becomes hostile and the meeting turns into an
investigatory interview the employee is entitled to representation.

**Disciplinary announcement.** When a supervisor calls an employee to
the office to announce a warning or other discipline, is this an
investigatory interview? The NLRB says no, because the supervisor is
merely informing the employee of an already-made
decision.[^[196]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#196)
Unless the supervisor asks questions about the employee's conduct, the
meeting is not investigatory.

**EMPLOYEE RIGHTS**

Under the Supreme Court's *Weingarten* decision, the following rules
apply to investigatory interviews:

-   The employee can request union representation before or at any time
    during the interview.

-   When an employee asks for representation, the employer must choose
    from among three options:

    1.  Grant the request and delay questioning until the union
        representative arrives;

    2.  Deny the request and end the interview immediately; or

    3.  Give the employee a choice of: (a) having the interview without
        representation or (b) ending the interview.

-   If the employer denies the request for union representation and
    continues the meeting, the employee can refuse to answer questions.

**STEWARD RIGHTS**

Employers sometimes assert that the only function of a steward at an
investigatory interview is to observe the discussion; in other words, to
be a silent witness. This is incorrect. The steward must be allowed to
advise and assist the employee in presenting the facts. When the steward
arrives at the meeting:

-   The supervisor or manager must inform the steward of the subject
    matter of the interview: in other words, the type of misconduct
    being
    investigated.[^[197]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#197)

-   The steward must be allowed to have a private meeting with the
    employee before questioning
    begins.[^[198]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#198)

-   The steward can speak during the interview, but cannot insist that
    the interview be
    ended.[^[199]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#199)

-   The steward can object to a confusing question and can request that
    the question be clarified so that the employee understands what is
    being
    asked.[^[200]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#200)

-   The steward can advise the employee not to answer questions that are
    abusive, misleading, badgering, or
    harassing.[^[201]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#201)

-   When the questioning ends, the steward can provide information to
    justify the employee's
    conduct.[^[202]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#202)

**EDUCATING MEMBERS**

Employees sometime confuse *Weingarten* rights with *Miranda* rights.
Under the Supreme Court's *Miranda* decision, police who question
criminal suspects in custody must notify them of their right to have a
lawyer present. The Supreme Court did not impose a similar requirement
in *Weingarten*. An employer does not have to inform an employee that he
or she has a right to union representation.

Unions should explain *Weingarten* rights to members in newsletters and
at union meetings. Consider distributing wallet-sized cards such as the
following:

+-----------------------------------------------------------------------+
| **WEINGARTEN CARD**                                                   |
|                                                                       |
| *(If called to a meeting with management, read the following or       |
| present this card to management when the meeting begins.)*            |
|                                                                       |
| If this discussion could in any way lead to my being disciplined or   |
| terminated, or affect my personal working conditions, I respectfully  |
| request that my union representative, officer, or steward be present  |
| at this meeting.  Until my representative arrives, I choose not to    |
| participate in this discussion.                                       |
+-----------------------------------------------------------------------+

**NLRB CHARGES**

An employer's failure to comply with a worker's request for union
representation, or a violation of any other *Weingarten* right, is an
unfair labor practice. Unless a grievance is pending on the matter, the
NLRB does not defer *Weingarten*
charges.[^[203]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#203)

**QUESTIONS AND ANSWERS**

**STEWARD'S REQUEST**

Q.    If I see a worker being questioned in a supervisor's office, can I
ask to be admitted?

A.    Yes. A steward has a right to insist on admission to a meeting
that appears to be a *Weingarten*
interview.[^[204]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#204)
If the interview is investigatory, the employee must be allowed to
indicate whether he or she desires the steward's
presence.[^[205]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#205)

**COERCION**

Q.    An employee, summoned to a meeting with her supervisor, asked for
her steward. The supervisor said, "You can request your steward, but if
you do, I will have to bring in the plant manager and you know how
temperamental she is. If we can keep it at this level, things will be
better for you." Is this a *Weingarten* violation?

A.    Yes. The supervisor is raising the specter of increased discipline
to coerce an employee into abandoning her *Weingarten*
rights.[^[206]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#206)

**CAN EMPLOYEE REFUSE TO GO TO MEETING?**

Q.    A supervisor told an employee to report to the personnel office
for a "talk" about his attendance. The employee asked to see his steward
but the supervisor said no. Can the employee refuse to go to the office
without seeing his steward first?

A.    No. *Weingarten* rights do not arise until an investigatory
interview actually begins. The employee must make a request for
representation to the person conducting the
interview.[^[207]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#207)
An employee can only refuse to go to a meeting if a supervisor makes
clear in advance that union representation will be denied at the
interview.[^[208]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#208)

**MEDICAL EXAMINATION**

Q.    Our employer requires medical examinations when workers return
from medical leaves. Can an employee insist on a steward during the
examination?

A.    No. A run-of-the-mill medical examination is not an investigatory
interview.[^[209]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#209)

**LIE DETECTOR TEST**

Q.    Do *Weingarten* rights apply to polygraph tests?

A.    Yes. An employee has a right to union assistance during the
pre-examination interview and the test
itself.[^[210]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#210)

**SOBRIETY TEST**

Q.    If management asks an employee if he will submit to a test for
alcohol, does *Weingarten* apply?

A.    Yes. The employee must be allowed to consult with a union
representative to decide whether or not to take the
test.[^[211]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#211)

**LOCKER SEARCH**

Q.    If a guard orders an employee to open a locker, can the employee
insist on a steward being present?

A.    No. A locker search is not an investigatory
interview.[^[212]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#212)

**COUNSELING SESSION**

Q.    An employee was given a written warning for poor attendance and
told she must participate in counseling with the human relations
department. Does she have a right to a union steward at the counseling
sessions?

A.    This depends. If notes from the sessions are kept in the
employee's permanent record, or if other employees have been disciplined
for what they said at counseling sessions, an employee's request for a
steward would come under
*Weingarten*.[^[213]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#213)
But if management gives a firm assurance that the meetings will not be
used for discipline, and promises that the conversations will remain
confidential, *Weingarten* rights would probably not
apply.[^[214]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#214)

**PRIVATE ATTORNEY**

Q.    Can a worker insist on a private attorney before answering
questions at an investigatory interview?

A.    No. *Weingarten* only guarantees the presence of a union
representative.[^[215]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#215)

**TELEPHONE INTERVIEW**

Q.    Over the weekend, a supervisor called a worker's home to ask about
missing tools. Did the worker have to answer the questions?

A.    No. *Weingarten* applies to telephone interviews. An employee who
fears discipline can refuse to answer questions until the employee has a
chance to consult with a union
representative.[^[216]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#216)

**STEWARD OUT SICK**

Q.    If a worker's steward is out sick, can the worker insist that a  
*Weingarten* interview be delayed until the steward returns?

A.    Usually, no. Management does not have to delay an investigation if
another union representative is available to assist the
employee.[^[217]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#217)

**INTERROGATION OF A STEWARD**

Q.    If a steward is called in by supervision to discuss her work, can
she insist on the presence of another steward?

A.    Yes. Stewards have the same rights to assistance as other
employees.[^[218]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#218)

**SHOP MEETING**

Q.    When management calls a meeting to go over work rules, do
employees have a right to demand a union representative?

A.    No. *Weingarten* rights do not arise unless management asks
questions of an investigatory
nature.[^[219]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#219)

**REMEDIES**

Q.    If management rejects a worker's request for union assistance at
an investigatory interview, induces him to confess to wrongdoing, and
fires him, will the NLRB order the worker reinstated because of the
*Weingarten* violation?

A.    No. The NLRB considers reinstatement to be an unwarranted
"windfall" for an employee who confesses to serious
misconduct.[^[220]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#220)
 The usual *Weingarten* remedy is a bulletin-board posting in which the
employer acknowledges that it violated the *Weingarten* rules and
promises to obey them in the future.

**NOTE:** The remedy is different when an employee is discharged for
requesting a steward or refusing to answer questions without one. In
such cases, the NLRB orders reinstatement with back
pay.[^[221]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#221)
A make-whole remedy is also imposed if an employee is demoted,
transferred, or loses privileges because of a request for union
representation.

**RECORDING THE INTERVIEW**

Q.    Can a supervisor tape record an investigatory interview? 

A.    This depends. The *Weingarten* decision itself does not forbid an
employer from tape recording an investigatory interview. But, if this
represents a new policy on the part of the employer, the steward can
object on the grounds that the union did not receive prior notice and an
opportunity to
bargain.[^[222]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#222)

**PARTICULAR REPRESENTATIVE?**

Q.    If an employee asks to be represented by her chief steward instead
of her departmental steward, must management comply?

A.    Usually, yes. If two representatives are equally available, an
employee's request for a particular representative must be
honored.[^[223]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#223)

**QUESTIONS ABOUT OTHERS**

Q.    If a worker is summoned to a meeting and asked about the role of
other employees in illegal activities, can he insist on assistance from
a union representative?

A.    Yes. Although the employee may not be involved in wrongdoing
himself, he risks discipline if he refuses to inform on others or admits
that he was aware of illegal activities. Because what he says at the
meeting could get him into trouble, he is entitled to union
representation.

**OBSTRUCTION**

Q.    The company is interviewing employees about drug use in the plant.
If I tell my people not to answer questions, could management go after
me?

A.    Yes. A union representative may not obstruct a legitimate
investigation into employee
misconduct.[^[224]{.underline}^](http://www.apwu.org/departments/ir/Weingarten.htm#224) 
If management learns of such orders, you could be disciplined.

**Chapter 5 Notes**

195\. NLRB v. J. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689 (U.S. Sup.
Ct. 1975).

196\. Baton Rouge Water Works Co., 246 NLRB 995, 103 LRRM 1056 (1979).

197\. Pacific Telephone and Telegraph Co., 262 NLRB 1048, 110 LRRM 1411
(1982), *enforced in part*, 711 F.2nd 134, 113 LRRM 3529 (9th Cir.
1983).

198\. U.S. Postal Service, 303 NLRB 463, 138 LRRM 1339 (1991).

199\. *See* Southwestern Bell Telephone Co., 251 NLRB 612, 105 LRRM 1246
(1980); New Jersey Bell Telephone co., 308 NLRB 277, 141 LRRM 1017
(1992); Yellow Freight System, Inc., 317 NLRB 115; 149 LRRM 1327 (1995)
(steward may be issued a warning lettr for repeatedly interrupting
interview, profanity, and pounding on manager\'s desk).

200\. U.S. Postal Service, 288 NLRB 864, 130 LRRM 1184 (1998); NLRB v.
J. Weingarten, Inc. 420 U.S. 251, 260, 88 LRRM 2689 (U.S. Sup. Ct.
1975).

201\. New Jersey Bell Telephone Co., 308 NLRB 277, 141 LRRM 1017 (1992).

202\. NLRB v. J. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689 (U.S. Sup.
Ct. 1975).

203\. *See* Amoco Oil Co., 278 NLRB 1, 2-3, 121 LRRM 1308 (1986).

204\. ILGWU v. Quality Mfg. Co., 420 U.S. 276, 88 LRRM 2698 (U.S. Sup.
Ct. 1975).

205\. Appalachian Power Co., 253 NLRB 931, 106 LRRM 1041 (1980). An
employee\'s silence, after a steward asks to be present, may be
considered agreement with the request. *See* Colgate Palmolive Co. 257
NLRB 130, 107 LRRM 1486 (1981).

206\. Southwestern Bell Telephone Co., 227 NLRB 1223, 94 LRRM 1305
(1977).

207\. Joseph F. Whelan Co., 273 NLRB 340, 118 LRRM 1040 (1984); Roadway
Express, 246 NLRB 1127, 103 LRRM 1050 (1979).

208\. *See* Glomac Plastics, Inc., 234 NLRB 1309, 97 LRRM 1441 (1977),
*enforced*, 592 F.2d 94, 100 LRRM 2508 (2d Cir. 1979); Interstate
Security Services, Inc. 263 NLRB 6, 110 LRRM 1535 (1982).

209\. U.S. Postal Service, 252 NLRB 61, 105 LRRM 1200 (1980).

210\. Consolidated Casinos Corp., 266 NLRB 988, 1008-10, 113 LRRM 1081
(1983).

211\. System 99, 289 NLRB 723, 131 LRRM 1226 (1988).

212\. *See* E.I. du Pont de Nemours & Co., 100 LRRM 1633 (Advice
Memorandum 1981) (car search); Chrysler Corp. (Advice Memorandum 1981)
(cited in Walnut Hill Convalescent Home, 114 LRRM 1255 (Advice
Memorandum 1983) (handbag search)).

213\. Good Hope Refineries, Inc., 245 NLRB 380, 382-84, 102 LRRM 1302
(1979).

214\. Amoco Chemicals Corp., 237 NLRB 394, 396-98, 99 LRRM 1017 (1978).

215\. TCC Center Companies, 275 NLRB 604, 119 LRRM (1985).

216\. *See generally* Pacific Southwest Airlines, Inc., 242 NLRB 1169,
1175-76, 101 LRRM 1366 (1979) (ALJ\'s conclusion that telephone
interview is covered by *Weingarten*, not rejected by Board).

217\. Coca-Cola Bottling Co. 227 NLRB 1276, 94 LRRM 1200 (1977).

218\. Keystone Consolidated Industries, Inc., 217 NLRB 995, 89 LRRM 1192
(1975).

219\. Northwest Engineering Co., 265 NLRB 190, 111 LRRM 148 (1982).

220\. Taracorp, Inc. 273 NLRB 221, 117 LRRM 1497 (1984).

221\. Safeway Stores, 303 NLRB 989, 138 LRRM 1007 (1991).

222\. *Cf.* Pennsylvania Telephone Guild, 277 NLRB 501, 120 LRRM 1257
(1985), *enforced*, 799 F.2d 84, 123 LRRM 2214 (3d Cir. 1986).

223\. Consolidated Coal Co., 307 NLRB 976, 977-78, 140 LRRM 1248 (1992).

224\. See Manville Forest Products Corp., 269 NLRB 390, 115 LRRM 1266
(1984); Cook Paint & Varnish Co., 246 NLRB 646, 102 LRRM 1680 (1979).
See also Service Technology Corp., 196 NLRB 845, 80 LRRM 1187 (1972)
(employee has no right to refuse to answer questions about misconduct he
has been involved in or witnessed).