Weingarten - What is It? - Public

WEINGARTEN RIGHTS - BACKGROUND INFORMATION

The United States Supreme Court decision in 1975 in the case of NLRB vs. J. Weingarten has become known as the Weingarten decision and gives the right of representation to employees during investigatory interviews. The actual language to use when demanding your rights is provided on the “Weingarten Statement for Employees” page of this website. The current page is to define the terms used in the statement and the conditions under which Weingarten may or may not apply.

The three rules of Weingarten are:
1. The employee must make a clear request for representation.
2. The employer has only three choices:

Grant the request and delay the interview until the representative arrives.

Deny the request and end the interview immediately.

Offer the employee a choice of continuing the interview without representation or ending the interview. 3. If the employer denies the request and continues the interview, the employer has committed an Unfair Employee Relations Practice. The employee has the right to refuse to answer any further questions.

COMMON Q & A:

When does Weingarten apply?
The right to union representation applies when an employee has a reasonable belief that discipline may result from the interview. The key is that the belief must be reasonable. In other words, every conversation your supervisor has with you is not grounds for invoking Weingarten, but only those conversations that seem to you to be leading towards discipline. Remember, a supervisor has the right to manage the workplace, inquire about job progress, comment on the quality of work, and other normal aspects of management. Investigatory interviews are literally interviews wherein questions seeming to point towards discipline are asked about a subject. Typical subjects of a true investigatory interview include, but are not limited to, absenteeism, safety, substance abuse, record falsification, attitude, insubordination, attendance record, theft, lateness, damage to City property, or work performance.

Of course, some supervisors will tell you in advance of the subject matter so you can call the Union before entering the meeting. No matter when the Union is called, you have the right to consult with the representative before continuing the interview.

Weingarten does not apply when a supervisor issues discipline. However, if the discipline is severe enough, a Skelly meeting must be announced and held prior to issuance of the discipline.

What happens if I invoke Weingarten?
You will be offered the three choices above. If your employer does not do any of the above and you refuse to answer the questions, you cannot be disciplined for your refusal to answer. In addition, you cannot be disciplined for invoking Weingarten rights.

Doesn’t the City have to notify me of my Weingarten rights?
No! You have to invoke those rights. That is why every employee should memorize the Weingarten Statement. No one can invoke those rights for you. The Supreme Court ruling placed the burden of knowing about and invoking these rights on the individual employee.

Will my representative advise me to refuse to answer?
In general, you should answer all questions truthfully. An employee is required to answer questions relevant to the workplace or can be faced with insubordination charges. There may be some questions that are off limits and the representative may object to those questions, but cannot tell you not to answer. The objection has its uses in later proceedings if they occur. In addition, the representative can participate in the interview, not as an adversary and not arguing the case, but in clarification of questions and answers. At any time during the interview, you can request to consult privately with your representative. In general, as in litigation, you should only answer the questions asked. Volunteering previously unknown information may be used against you and harm your case. If in doubt, ask for a consultation with your representative.

If my boss calls me in to give me a “Notice to Correct”, do I invoke Weingarten?
No. Weingarten is only for use during investigations that could lead to discipline. In the case of a “Notice to Correct”, the investigation is over and the supervisor is issuing the discipline.