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The Right to Request Representation During an Investigatory Interview
Section 7 of the National Labor Relations Act (NLRA) protects employees’ right to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection”
Among the rights protected by Section 7 is the right of union-represented employees, upon request, to have their representative present during an interview that the employee reasonably believes could lead to discipline. This right was first articulated by the Supreme Court in the case, NLRB v. J. Weingarten, Inc. In that case, the Court found that Section 7 of the NLRA protects employees who refuse to submit to certain interviews without a requested representative present.
An employee’s requested representative, which may be a union steward, business agent or officer, or fellow employee, is often referred to as a “Weingarten representative.” Weingarten representatives are entitled to provide advice and active assistance to employees during investigatory interviews. Employees’ right to request their representatives are frequently referred to as “Weingarten rights.”
Employers violate the NLRA if they proceed with an investigatory interview while refusing an employee’s request or retaliate against them for making the request. Depending on the circumstances of each case, the Board may order that the employer cease and desist, post a remedial notice, require the employer to repeat the interview with a union member present, or rescind and remedy discipline resulting from a Weingarten violation.
When do employees have a right to request a union representative?
An employee’s right to request a representative arises during an investigatory interview. A useful comparison is an individual’s Miranda right to an attorney when questioned by law enforcement. However, unlike the right to counsel in a Miranda setting, employers are not required to inform union members of their rights under Weingarten.
Any meeting may be an “investigatory interview” provided that the following occurs:
When making a request for a representative, the Board does not require that the employee specify that they need a “Weingarten” representative. Once an employee requests their representative, they are not required to repeat that request.
At times, it is not clear whether a meeting is investigatory or could lead to discipline. In those cases, the National Labor Relations Board (NLRB) looks to the conduct of the meeting and the surrounding circumstances to determine if there was an investigatory purpose. The Board will consider such factors as the identity/status of the participants, the parties’ collective-bargaining agreement and disciplinary practices, whether there was a confrontational tone to the meeting, any notices or warnings issued prior to the meeting, or whether employees had been disciplined for similar misconduct.
What types of meetings are not covered by the Weingarten rule?
If the above conditions are met, any meeting between an employer and employee could trigger an employee’s Weingarten rights. However, not every meeting or employer questioning satisfies those conditions. For example, employers need not grant an employee’s request for a representative in the following situations:
Even in the above examples, however, the nature of a meeting may change as it progresses. If an employee reasonably believes that a meeting that commenced for some other purpose has become an investigatory interview, the Board will look to the above factors to determine if an employee’s request for a representative should have been honored.
Who may serve as an employee Weingarten representative?
An employee may choose their own representative, who may be a representative of the union or a fellow employee. Employers are required to honor that request, so long as that choice does not unduly interfere with the employer’s ability to conduct its investigation. Employees may not request a non-employee representative unless that individual is an officer or business agent of the employee’s union. For example, an employee may not request a private attorney or a family member as their Weingarten representative if that individual has no affiliation with the employee’s union.
How should an employer respond to an employee’s request for representation?
When an employee requests a representative during an investigatory interview, an employer may lawfully take one of three courses of action:
If the employer denies the request and continues to ask questions, this could constitute an unfair labor practice. Also, it is an unfair labor practice for an employer to discipline an employee for refusing to answer questions without their union representative present.
What may a union representative do during an employee interview?
What are the limitations on union representation during an employee interview?
This page was posted by the Office of the General Counsel, and like other similar pages on nlrb.gov, it has not been reviewed or approved by the Board. The information contained here may be subject to unstated exceptions, qualifications, limitations, and it may be rendered unreliable without prior notice by changes in the law.