Your Legal Rights

From the Law Office of Beeson, Tayer & Bodine

Weingarten Rights—a refresher and update

One of the vital functions of a Teamsters shop steward is to prevent managers from attempting to threaten, coerce, or entice members into confessions of misconduct. The legal basis to do this is to rely on “Weingarten rights” which allow employees to insist on the presence of a Union representative whenever they are subjected to an investigatory interview that might result in discipline.

What is “an investigatory interview”?

An investigatory interview occurs when an employee is questioned by management and the employee has a reasonable belief that the interview might lead to discipline or other adverse consequences.

Some common situations to see whether both requirements for an investigatory interview are met:

A supervisor calls an employee in to ask him about a workplace accident in which he was involved. Investigatory interview? Yes. This is a classic example of an investigatory interview, it is a series of questions, and it clearly might lead to discipline. Note that a drug-test that is part of an accident investigation would be covered by the Weingarten right.

A supervisor calls an employee in to her office to notify the employee that he or she is being disciplined. Investigatory interview? Likely Not. Unless the supervisor starts questioning the employee, merely announcing discipline does not implicate Weingarten rights. However, if the supervisor starts to ask questions, the employee should stop answering and insist on union representation - it is important to remember that a meeting or conversation can become an investigatory interview even if it did not start that way. The employer may say “I’m ordering you to answer” but any discipline resulting from disobeying that order is unlikely to hold up if grieved.

A supervisor and an employee talk informally on the shop floor about how a work process might be improved. Investigatory interview? Likely not. Not all conversations with management are investigatory interviews, and this likely doesn’t qualify because there is little or no prospect of discipline. Remember, of course, that such conversations can turn into investigatory interviews if the supervisor starts to question the employee about her own performance, or adopts an aggressive or accusatory attitude. In that case, the employee should stop talking and insist on union representation.

I’m the subject of an investigatory interview - what can I do?

Your employer is not required to tell you about your Weingarten rights. You must know—and invoke—your rights.

You can and should insist on a union representative or shop steward being present. You can make this request at any time before or during an investigatory interview.

Once you’ve requested representation the employer should either grant your request and cease questioning until the union representative arrives or deny the request and end the interview.

You can and should refuse to answer questions if the employer has denied your request for union representation and continues to ask you questions.

You cannot and should not insist on being represented by a particular shop steward or representative. Although your choice between two or more representatives who are equally available should be honored, you do not have the right to insist on a particular representative if that representative is unavailable and another representative is available.

You cannot and should not refuse to attend an investigatory interview. You should attend the interview, request representation before answering any questions, and then refuse to continue if that request is denied.

What can my steward/representative do?

When they represent a member at an interview stewards can:

> demand that the supervisor describe the subject matter of the interview before starting (what misconduct is alleged?);

> hold a private meeting with the member before an interview begins;

> speak up during the interview (but not prevent the employer from conducting the interview);

> object to confusing or unclear questions and request that they be clarified;

> advise the employee not to answer harassing, abusive, and misleading questions;

> present information in support of the member;

> serve as a witness to the interview (so the supervisor can’t give a false account of what the member said).