Weingarten Representatives Have Rights Too
April 17, 2014 by Christopher Hammer
It has been long established law under the National Labor Relations Act that an employee has a statutory right to union representation at any employer investigatory interview that the employee reasonably fears may result in discipline. This right to representation is commonly referred to as a ‘Weingarten’ right after the 1975 U.S. Supreme Court decision NLRB v. J. Weingarten, which first recognized this employment law protection.
A corollary to the Weingarten representation right is the right of the employee to know beforehand the purpose of the employer’s interview.[1] Unless the employee knows ahead of time what the meeting is about, the ability of the employee’s representative to effectively give aid and protection is seriously undermined. For similar reasons, an employee is also entitled to a pre-interview conference with their union representative to discuss the issues raised by the employer.
While most union employees are well aware of their right to representation during an employer’s disciplinary interview, there is less understanding about the representative’s rights during this process. In a recent decision, the National Labor Relation Board clarified that it is a violation of the Act for an employer to discipline a Weingarten representative for insisting that the employer disclose the purpose of an investigatory meeting, even where the Weingarten representative instructs the employee being interviewed to not answer questions until the employer clarifies the purpose of the questions.[2] Although the Weingarten representative generally cannot obstruct an employer’s investigation, interrupting the investigation to clarify the issues being investigated is a protected activity. Therefore, Representatives should not fear reprisals from their employer for insisting to know the general purpose of the investigatory meeting.
The law concerning Weingarten rights seems straightforward on its surface. However, it can be a complicated area of law, one that is still developing. Beeson, Tayer and Bodine (BT&B), a labor and employment law firm in Oakland and Sacramento specializes in such matters and is well prepared to advise you on navigating workplace disputes.
[1] Pacific Telephone and Telegraph Co. v. NLRB, (1983) 711 F.2d 134, 137 (9th Cir.).
[2] Murtis Taylor Human Services Systems (March 25, 2014) 360 NLRB No. 66.
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