Weingarten Meetings: Things You Should Know
“Weingarten” is one of the most commonly known issues of labor law. It is not a law, but a rule based on a 1975 Supreme Court decision in the private sector. The Court found that an employee who feels discipline could result from an interview has the right to have a union representative. A representative must be provided upon request, and the employee is not required to participate in the interview if a representative is denied. But, the employer can then take action based on the evidence it already has, although it cannot discipline the employee for refusing to participate in the meeting, unless the employee is ordered to do so. The employee should comply and then file a grievance or ULP.
Weingarten generally applies only to investigations of the employee, not where prior decisions are merely being announced or where policies or rules are being distributed, and not for investigations of other employees. It is primarily for the protection of an employee under questioning, similar to the right to an attorney during police interrogations. It is triggered when the employee has a reasonable belief that discipline could result from the meeting. Even when the employer assures the employee that no discipline is being contemplated, if the meeting becomes adversarial or shifts from discussion to interrogation, Weingarten may apply. The employee has the right to consult with the rep before the interview and to be told the nature of the interview and what allegations are being raised.
The representative is not acting like an advocate during in a grievance. Instead, he is acting as a witness and as a shield against harassment/intimidation. The rep can also act like an interpreter, asking clarifying questions, so that both sides understand each other and the employee’s statements are not taken out of context. If the representative interferes with the investigation, he can be removed. But he cannot be forced to sit silently while management berates or attempts to confuse or intimidate the employee. The rep generally should not direct the employee to refuse to answer questions, but they can talk privately on occasion even during the interview.
Under the Green Book, the agency must give the employee advance notice of an investigative meeting (and other formal non-disciplinary discussions), disclose the subject matter and that a union representative is available. In the private sector however, an employee must ask for a representative. If a government employer fails to provide a representative, it cannot use any information derived from the meeting, unlike in the private sector where the employer could use such evidence against the employee – even when obtained improperly. When in doubt, employees should ask for a union rep.