Weingarten for Union Stewards - Public

Managers and supervisors may use intimidation techniques, particularly in closed door meetings, when interviewing employees during an investigation into possible wrongdoing. Excessive abuse of employees in this regard led to the Supreme Court decision known as Weingarten, which gave employees the right to representation during investigatory interviews. However, the Supreme Court did not go so far as to require that management advise employees of their rights, but requires the employee to be aware of and invoke those rights.

As a Union Steward, if you get called to represent an employee during an investigatory meeting, you will have little or no time to become familiar with the subject matter. However, advising and assisting an employee during this interview is one of the most important functions of a Union Steward. Prior education of members regarding these rights and your encouragement of them when invoking those rights can provide for more fair and equitable investigations.

Your presence as a steward can assist members by:
• You can help the member explain what happened if the employee is too fearful to respond fully or is not fully articulate in the English language.
• You can bring up extenuating factors.
• You can advise the member to answer truthfully and not to simply deny everything. Blind denial may be seen as a sign of guilt.
• By calling for a private consultation on critical questions, you can help prevent a member from admitting a charge without full explanation of the circumstances.
• You can advise the member to only answer the questions asked and avoid giving management information unknown to them.
• You can help control the member’s emotions. Anger is always a poor response by the member, although occasionally such a response by the Steward can help the member settle down.
• You are a witness to the entire interview.

When Weingarten Applies:
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 a supervisor has with an employee is not grounds for invoking Weingarten, but only those conversations that seem 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.

The Rights of the Union Steward:
These rights are established by the original Weingarten case and succeeding cases that tested those rights.
• The supervisor must detail the investigation subject when you arrive and before beginning the interview.