Keith Zimmerman
Kahn, Smith & Collins, P.A.
Weingarten Rights Generally
In NLRB vs. Weingarten, Inc., 420 U.S. 251, 88 LRRM 2689 (1975), the U.S. Supreme Court affirmed the rights of unionized employees to have a union representative present during investigatory interviews. According to the Court, these rights arise as a corollary to the proper functioning of the National Labor Relations Act (NLRA). The rights flow from NLRA § 7’s guarantee of the right of employees to act “in concert for mutual aid and protection.” Denial of this right violates NLRA § 8 (a)(1).
The rights established by the Court have become known simply as Weingarten rights. In short, employees have Weingarten rights only during investigatory interviews. An investigatory interview occurs when a supervisor or management representative questions an employee to obtain information which 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 the right to request union representation.
How Weingarten Rights Work
There are four conditions that must be met before an employee may assert Weingarten rights:
- one or more management representatives must seek to question a bargaining unit employee;
- the questioning must be in connection with an investigation;
- the employee must reasonably believe that the examination may result in disciplinary action against the employee; and
- the employee must request union representation.
Where all conditions are met, a management representative may not continue to question an employee without allowing the employee his or her requested representation.
One of the most contested and difficult elements in determining whether Weingarten rights are available is the “reasonable belief” that discipline may result. In many instances, it is clear when management is inquiring about an act of misconduct that may lead to discipline. In fact, during an investigatory interview management must inform the union representative of the subject of the interview. However, in other cases it may be unclear to management, the employee, or both that the end-result of the investigation may be discipline. In some circumstances it is difficult to determine whether management is “investigating” or is at some lesser, more preliminary point of inquiry. This is further complicated by the fact that management need not advise an employee of their Weingarten rights in order to hold an investigatory meeting. Were management required to advise employees before conducting an interview, then employees would have the benefit of knowing that management considers the interview as potentially leading to discipline.
When an employee invokes Weingarten rights, management has three choices. It may:
- grant the request and notify the union that a meeting to examine a bargaining unit employee is going to take place and that the employee has requested union representation;
- discontinue the interview and rely on evidence already available or information obtained from other sources; or
- offer the employee a clear choice to continue the interview without representation, or have no interview at all. (Employees should be counseled not to accept this offer.)
In addition to management directing an employee to attend a meeting, a demand by management that an employee give a written statement may be considered an examination that invokes Weingarten rights.
The union representative’s role in an investigatory meeting is not to defend the employee or act as their advocate, but to assist and counsel workers during the interview. The representative must also be allowed to speak privately with the employee before the interview. The union representative must be allowed to make relevant comments, but the union representative cannot disrupt the meeting nor answer the questions posed to the employee. During the questioning, the representative can interrupt to clarify a question or to object to confusing or intimidating tactics. The representative may advise an employee on how to answer a question. At the end of the interview the union representative can add information to support the employee’s case.
Weingarten rights are not applicable when management issues a disciplinary action. Nor do Weingarten rights come into play when engaging in performance counseling or reviews.
The remedy for an employer’s violation of Weingarten rights is not make whole relief, if the employee was disciplined for just cause. See Taracorp Industries, 273 N.L.R.B. 221 (1984). If the employer violates the Weingarten rights by excluding the union’s representative from a disciplinary interview and subsequently terminates the employee solely because of the employee’s misconduct, then the Board may enter a cease and desist order only. Repeated violations of Weingarten rights would offend that order and would subject the employer to penalty for violation of that order. In other words, repeated violations are more easily prevented than isolated violations. If an employer terminates an employee in part because the employee demanded the Weingarten rights then reinstatement with back pay is the appropriate remedy. That is, an employee may be entitled to make whole relief if he or she is disciplined or discharged for asserting the rights.
Weingarten Rights in the Private Sector
Weingarten rights for private sector employees are not found in any statute. Neither the NLRA nor any other statute, rule or regulation expressly grants private sector employees Weingarten rights. Rather, Weingarten rights arise out of the NLRA. The scope and functioning of the rights is determined by the NLRB and federal judicial case law.
By and large, it is the NLRB that frames the scope of Weingarten rights. Accordingly, Weingarten rights may be expanded or contracted by the NLRB. For instance, in July 2000, the NLRB extended the rights to nonunion employees so that any employee under investigation or subject to possible discipline was permitted to bring along a “co-worker” into the interview or meeting. Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000). In 2004, the NLRB reversed itself and held that Weingarten rights apply only to unionized employees, and stated, “the right of an employee to a co-worker’s presence in the absence of a union is outweighed by an employer’s right to conduct prompt, efficient, thorough, and confidential workplace investigations.” IBM Corp., 341 NLRB No. 148 (2004). The Board that decided Epilepsy was dominated by Clinton appointees. The IBM Board was dominated by Bush appointees, and was accompanied by a strong dissent from Wilma Liebman. Liebman now chairs the Board and the Board is dominated by Obama appointees. Many expect IBM to be reversed.
Weingarten Rights for Federal Employees
Title 5 U.S.C. § 7114(a)(2)(B), part of the Federal Service Labor-Management Relations Statute (FSLMRS), sets forth the equivalent of Weingarten rights for represented federal employees. The federal statutory rights function just as the private sector Weingarten rights do, but there are some differences. One difference is that the federal statutory right is styled as a right of the union. Under the FSLMRS, the union is entitled to represent a bargaining unit employee at meetings in connection with an investigation. Additionally, the agency is responsible for annually notifying employees of their Weingarten rights. See 5 U.S.C. § 7114(a)(3).
Weingarten Rights for State & Local Public Employees
Maryland’s treatment of Weingarten rights depends on the particular employer and labor relations body. Under Maryland’s collective bargaining laws, State employees do not have statutory Weingarten rights. State employees facing discipline receive certain protections. See Md. Code, State Personnel & Pension (SPP), § 11-106. However, those protections do not include any form of Weingarten rights. At most, a bargaining unit employee “may choose any person to assist or represent the employee during an appeal” of a disciplinary action. SPP § 11-103(d).
The State Labor Relations Board (SLRB) and the State Higher Education Labor Relations Board (SHLRB), which have jurisdiction over State employee and State higher education employee labor issues, could choose to recognize Weingarten rights. Since the SLRB and SHLRB track and tend to follow the case law of the NLRB they may well be inclined to afford Weingarten rights to State employees and State higher education employees. Nonetheless, the SLRB and SHLRB have not had occasion to address the issue. Their positions, therefore, are uncertain.
Maryland Public School teachers and employees are in a similarly uncertain position. The State Board of Education has alluded to recognition of Weingarten rights. See e.g., Wardell Harmon v. Baltimore City Board of School Commissioners, Opinion 02-49. However, it is unclear whether Weingarten rights are actually recognized by the State and local school boards. By practice, the Baltimore City Board of School Commissioners affords teachers the right to union representation in investigatory meetings. The actual position of the other school boards is not clear and certain.
The Baltimore City Labor Commissioner recognizes and affords employees of the Mayor and City Council Weingarten rights. See the Labor Commissioner’s website, where those rights are set out.
Interestingly, the Maryland appellate courts have never taken up the issue Weingarten rights – in any circumstance.
Maryland’s neighboring states take widely varying positions on Weingarten rights for public employees. For example, Pennsylvania has fully embraced Weingarten rights for nearly 30 years. Office of Admin. v. Pennsylvania Labor Relations Bd., 916 A.2d 541, 547 (2007). In Pennsylvania, Weingarten rights include the right of an individual to choose a specific union representative if the assisting union representative is reasonably available and absent extenuating circumstances. See id.
The Supreme Court of Appeals of West Virginia, on the other hand, has held that Weingarten is inapplicable to West Virginia Public employees. It has drawn a sharp distinction between public and private employees. Recognizing the statutory rights of public employees, the Court has concluded that “If the Legislature wishes to provide further due process rights to union representation before termination, it may amend [the law].” See Swiger v. Civil Service Com’r, 365 S.E.2d 797 (1987).
That Court noted a divide across the Country between States that have robust procedural due process schemes for public employees and those that do not. The Court believed that States with fewer statutory protections were more likely to recognize Weingarten rights for employees. Where the statutory protections were substantial, courts refrain from finding more rights.
Securing Weingarten Rights & Using Them Effectively
The first determination for a union is whether its members are presently afforded Weingarten rights. If they are not, the union should determine the value of such rights and whether the union should seek to secure Weingarten rights. Weingarten rights can be secured by (1) judicial or administrative (the pertinent labor relations board) decision, (2) legislation, or (3) collective bargaining agreement. Which process is most practical and prudent depends on the union, its needs, and its political power.
Where union members are entitled to Weingarten rights, the union should work to ensure that they are employed effectively. A union should be sure to inform all members of their Weingarten rights. Weingarten rights mean nothing (in most cases) if the employee does not know that he or she has such a right.
Union representatives should be trained to be adept at such meetings and to know the Weingarten rights thoroughly. The purpose of the right is to ensure that interviews are conducted fairly. Union representatives should bear that in mind and serve both as facilitators and safeguards. The union representative helps facilitate an interview that goes to the proper issues. The union representative acts as a safeguard against unfair tactics and serves as counselor to employees in pressure-filled situations.
Final Tips
o A collective bargaining agreement can direct that an employer advise an employee of their Weingarten rights at the initiation of any examination.
o The investigator and the union representative should confer before any meeting about the nature of the investigation and expectations about how the meeting will be conducted. Such discussion should be held outside the presence of the employee. This often facilitates a smooth interview.
o Advise employees to affirmatively inquire about the nature of the meeting or interview: “If this meeting can in any way lead to my being disciplined or terminated, or have any adverse effect on my working conditions, then I respectfully request that a union representative be present at this meeting.”
