IAM Local 311

Los Angeles's Fighting Machinists Since 1900

Know Your Rights

Weingarten Rights – Representation during an investigation interview conducted by your employer.

Unions should encourage workers to assert their Weingarten rights. The presence of a steward can help in many ways.  The contents of this section is not intended as legal advice, please contact your Union representative for further information.

  • The steward can help a fearful or inarticulate employee explain what happened.

  • The steward can raise extenuating factors.

  • The steward can advise an employee against blindly denying everything, thereby giving the appearance of dishonesty and guilt.

  • The steward can help prevent an employee from making fatal admissions.

  • The steward can stop an employee from losing his or her temper, and perhaps getting fired for insubordination.

  • The steward can serve as a witness to prevent supervisors from giving a false account of the conversation.

Investigatory Interviews usually relate to subjects such as absenteeism, accidents, damage to company property, drinking, drugs, falsification of records, fighting, insubordination, lateness, poor attitude, sabotage, theft, violation of safety rules, work performance


 

Weingarten Rules:

Under the Supreme Court’s Weingarten decision, when an investigatory interview occurs, the following rules apply:

RULE 1:
The employee must make a clear request for union representation before or during the interview. The employee cannot be punished for making this request.

RULE 2:
After the employee makes the request, the employer must choose from among three options. The Employer must either: 

Grant the request and delay questioning until the union representative arrives and has a chance to consult privately with the employee; or 
Deny the request and end the interview immediately; or 
Give the employee a choice of (1) having the interview without representation or (2) ending the interview. 

 

RULE 3:
If the employer denies the request for union representation, and continues to ask questions, it commits an unfair labor practice and the employee has a right to refuse to answer. The employer may not discipline the employee for such a refusal.
Unions should encourage workers to assert their Weingarten rights. The presence of a steward can help in many ways. For example:

The steward can help a fearful or inarticulate employee explain what happened. 
The steward can raise extenuating factors. 

The steward can advise an employee against blindly denying everything, thereby giving the appearance of dishonesty and guilt. 

The steward can help prevent an employee from making fatal admissions. 

The steward can stop an employee from losing his or her temper, and perhaps getting fired for insubordination. 

The steward can serve as a witness to prevent supervisors from giving a false account of the conversation. 

Note: the NLRB generally does not defer charges alleging a violation of Weingarten rights. Nor are violations considered de minimus even if no employee is disciplined.

What is an Investigatory Interview?

Employees have Weingarten rights only during investigatory interviews. An investigatory interview occurs when a supervisor questions an employee to obtain information that could be used as a basis for discipline or asks an employee to defend his or her conduct. If an employee has a reasonable belief that discipline or other adverse consequences may result from what he or she says, the employee has a right to request union representation.

Shop-floor conversations: Not every management-initiated discussion is an investigatory interview. For example, a foreman may talk to a worker about the proper way to do a job. Even if the boss asks questions, this is not an investigatory interview because the possibility of discipline is remote. The same is true of routine conversations to clarify work assignments or explain safety rules.

Nevertheless, even an ordinary shop-floor discussion can change its character if the supervisor is dissatisfied with the employee’s answers. If this happens, the employee can insist on the presence of a union representative before the conversation goes any further.

Disciplinary announcements: When a supervisor calls a worker to the office to announce a warning or other discipline, is this an investigatory interview affording the worker a right to union representation? The NLRB says no, because the employer is merely announcing a previously arrived-at decision and is not questioning the worker. Such a meeting, however, can be transformed into an investigatory interview if the supervisor begins to ask questions to support the decision.

Note: An employer that has followed a past practice of allowing stewards to be present when supervisors announce discipline, must maintain the practice during the contract term. Refusing to allow a steward to attend would constitute an unlawful unilateral change.

Educating Workers
You may be familiar with the “Miranda warnings” given by police. The Miranda warnings notify criminal suspects of their rights, including the right to a lawyer and to remain silent. Unfortunately, the Supreme Court did not impose a notice requirement in its Weingarten decision. Employers have no obligation to inform workers of their right to request union representation. This is the Union’s job.

IAM Local 311A © 2014