Can Union Representatives Be Present at Disciplinary Meetings?

Employees have the right to request a union representative during investigative interviews that may lead to disciplinary action. Employers must comply or face potential labor law violations under the National Labor Relations Act.

By Douglas Wade, Attorney

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Table of Contents

1. The Right to Have a Representative Present During a Disciplinary Interview

2. When do workers have the right to ask for a union representative?

3. What kinds of meetings are exempt from the Weingarten rule?

4. Can anybody be a Weingarten representative for employees?

5. What is the proper way for an employer to handle a worker who requests union representation?

6. During an interview, what is the role of a union representative?

7. What can a union representative not do during an employee interview?

The Right to Have a Representative Present During a Disciplinary Interview

According to Section 7 of the NLRA, or the National Labor Relations Act, employees have the right to self-organize, or otherwise create or join a labor union. They also have the right to perform collective bargaining through their own chosen representatives and to participate in other activities related to mutual protection and aid.

It is the right of every employee, upon request, to have an authorized representation present during any interview that the employee has reasonable grounds to think might result in disciplinary action, as stated in Section 7. This right first came about in the Supreme Court case NLRB v. J. Weingarten, Inc. The Court determined in this case that Section 7 of the Act safeguards workers who decline to participate in specific interviews without a union rep present.

Although this privilege is now only granted to employees who are represented by a union, the NLRB General Counsel is requesting that the Board revert to its earlier ruling that all employees, regardless of union status, have this right.

A “Weingarten representative” is an employee’s designated representative who may offer guidance and support to employees during investigative interviews. This representative can be a union steward, a company agent or officer, or even a coworker. A common term for employees’ ability to choose their own representatives is “Weingarten rights.”

When an employer conducts an investigatory interview against an employee’s request or takes action against them because they made the request, it violates the National Labor Relations Act. In the event of a Weingarten violation, the Board has many options, including rescinding and remedying sanctions, ordering the employer to cease and desist, posting a remedial notice, or requiring the employer to do the interview again with a union member present.

When do workers have the right to ask for a union representative?

During an investigative interview, an employee has the right to ask to be accompanied by a representation. Here’s a useful analogy: think about how a person is protected by Miranda rights when police take them in for questioning. They do not have to answer any questions without an attorney present. Employers, on the other hand, are not obligated to alert union members of their rights under Weingarten, in contrast to the right to counsel in a Miranda situation.

In order for a meeting to be considered an “investigatory interview,” the following must take place:

Something along the lines of a manager, leadership representative, or superior wanting to interrogate an employee.
The purpose of the interrogation is to gather information about the employee’s performance and behavior on the job. In an investigative interview, a manager or supervisor may ask an employee to explain, defend, or acknowledge wrongdoing that might lead to disciplinary action or even termination.
The worker has a reasonable fear that their employment status or working circumstances may be negatively affected as a result of the inquiry, including but not limited to dismissal, disciplinary action, demotion, or other negative outcomes.
The worker has asked to speak with a union official. No one, not even a union representative, has the authority to request representation on a worker’s behalf, and neither the employer nor the employee has any responsibility to inform the other of this privilege.

It is not necessary for the employee to mention a “Weingarten” representative while requesting representation from the Board. An employee doesn’t have to ask for their representative again if they’ve already done so.

Meetings may have both investigative and disciplinary purposes, and it is not always obvious which. To ascertain whether an investigative intent was there, the NLRB examines the meeting’s conduct and contextual factors in such instances. Questions that the Board will take into account include: who was involved, what their status is, the collective bargaining agreement and disciplinary practices of the parties involved, the level of confrontation during the meeting, any warnings or notices given before the meeting, and whether or not employees have faced disciplinary action for past misconduct.

What kinds of meetings are exempt from the Weingarten rule?

Any time the aforementioned circumstances are satisfied, a Weingarten employee may be entitled to use their rights in any meeting with their employer. But it doesn’t mean every meeting or interview with an employer will match those requirements. For instance, in the following cases, employers are not required to comply with an employee’s request for a representative:

Meetings for the purpose of instructing workers on how to do their jobs better. In most cases, meetings like these do not result in disciplinary action.
When an employer meets with an employee (or employees) to discuss company policy on personnel matters. The majority of the time, these discussions do not result in disciplinary action or even questioning of employees.
The employee is notified in advance that the interview will not lead to any disciplinary action or negative treatment from the company.
Gatherings to discuss previously decided disciplinary actions. A meeting to advise an employee of a final disciplinary action decision is not considered an investigation if the employer has already made up their mind. Similarly, a meeting that an employee requests to talk about disciplinary action they’ve had isn’t an investigation into the matter as the punishment has already taken place.
Meetings where a worker is questioned about the behavior or work of another employee. For instance, if an employee sees another employee doing inappropriately, they do not have the right to Weingarten representation when asked about it.

The meeting’s character may evolve as it goes on, though, even in the aforementioned instances. The Board will consider all of these factors when deciding whether or not to honor a worker’s request for a representation in the event that the employee has a reasonable belief that a meeting that started with another purpose has turned into an investigative interview.

Can anybody be a Weingarten representative for employees?

Workers have the right to select their own representative, who can be a union official or even another employee. As long as the employee’s preference does not get in the way of the employer’s capacity to carry out the inquiry, the employer must comply with the request. Unless they are a union leader or company agent, employees cannot ask for a representative who is not an employee. If an employee’s family member or private attorney is not a member of the employee’s union, the employee cannot appoint them as their Weingarten representative.

What is the proper way for an employer to handle a worker who requests union representation?

Employees have the right to request a representative during investigative interviews, and employers have three legal options:

The company could agree to what the worker wants and put off the interview until a representative is present.
Employers have the option to reject the request and terminate the interview right away
The company may let the worker decide if they want to go ahead with the conversation without a representative or stop the interview.

An unfair labor practice may have occurred if the employer persistently asked follow-up inquiries after rejecting the request. Furthermore, if a union representative is not present when an employee refuses to answer questions, the employer is engaging in unfair labor practices.

During an interview, what is the role of a union representative?

Members of the union are present during the interview process to offer advice and testify as witnesses. Before interviewing an employee, employers must notify union representatives of the interview’s purpose and provide them enough time to meet with the worker.

The union representative has the right to ask the employer for clarification, provide the employee guidance on how to answer questions (within reason), and supply the employer other information after the interview has ended. If queries are harassing, abusive, or otherwise insulting, a union representative has the right to object.

What can a union representative not do during an employee interview?

Union representatives defending employees in investigative interviews have a responsibility to maintain civility and refrain from interfering with lawful business operations. If a union representative acts in an offensive or disruptive manner at a meeting, the employer has the right to remove them from the premises.

No union leader has the authority to dictate an employee’s statements or encourage them to provide misleading information.

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Can Union Representatives Be Present at Disciplinary Meetings?

The Right to Have a Representative Present During a Disciplinary Interview

When do workers have the right to ask for a union representative?

What kinds of meetings are exempt from the Weingarten rule?

Can anybody be a Weingarten representative for employees?

What is the proper way for an employer to handle a worker who requests union representation?

During an interview, what is the role of a union representative?

What can a union representative not do during an employee interview?

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Can an Employer Deny a Doctor’s Note?

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