Weingarten Rights Statement
“I request to have a union representative present only behalf during this
meeting because I believe it may lead to disciplinary action being taken against
me. If I am denied my right to have a union representative present, I will
refuse to answer accusational questions and any I believe may lead to
Topic: WEINGARTEN RIGHTS
When management begins to ask you questions that could lead to you being
disciplined, you don’t have to face it alone. If you have a reasonable
belief that answers you give could be used by the supervisor to discipline you,
the United States Supreme Court says you can refuse to answer any questions
until a union representative is on the scene and has had a chance to talk things
over with you first. It is your right to have the union representative
present during the questioning to advise you, ask supervisors for
clarifications, and provide additional information at the end of the session.
The employee subject to the interview must reasonably believe that the
investigatory interview will result in disciplinary action. A meeting
called by the employer for the purpose of imposing discipline, is not an
interview subject to Weingarten Rights.
Under the Supreme Court’s Weingarten decision, when an investigatory interview
occurs, the following rules apply:
RULE 1: The employee must make a clear request for union representation
before or during the interview. The employee cannot be punished for making
RULE 2: After the employee makes the request, the employer must choose
from among three options. The employer must either:
RULE 3: If the employer denies the request for union representation, and
continues to ask questions, it commits an unfair labor practice and the employee
has a right to refuse to answer. The employer may not discipline the
employee for such a refusal.
- Grant the request and delay questioning until the union representative
arrives and has a chance to consult privately with the employee; or
- Deny the request and end the interview immediately; or
- Give the employee a choice of (1) having the interview without
representation or (2) ending the interview.
One of the most vital functions of your Union Executive Board Member is to
prevent management from intimidating employees. Nowhere is this more
important than in closed-door meetings when managers attempt to coerce employees
into confessing to wrongdoing.
You may be familiar with the “Miranda Warnings (Rights)” given by law
enforcement agents. The “Miranda Warnings” notify criminal suspects to
their rights, including the right to a lawyer and to remain silent.
Unfortunately, the Supreme Court did not impose a notice requirement in its
Weingarten decision. Employers have no obligation to inform workers of
their right to request union representation.
The rights of employees, to the presence of union representatives, during
interviews were announced by the U.S. Supreme Court in 1975 during a National
Labor Relation Board hearing NLRB vs. J. Weingarten, Inc.). Since that
case involved a clerk being investigated by the Weingarten Company.
These rights have become known as the Weingarten Rights.
Employees in Public Transit are often involved in investigatory interviews with
their supervisors. If these employees have a reasonable belief that
discipline or other adverse consequences may result from what he or she may say,
they have a right to request the presence of a Union Representative.
Investigatory interviews usually relate to subjects such as absenteeism,
customer complaints, accident, and damage to company property, alcohol and drug
use, falsification of records, theft, insubordination, lateness/misses, and
violations of safety rules.
Public Transit employees should be aware of their Weingarten Rights.
The presence of an Executive Board Member can help in several ways; such as:
- The steward can help a fearful or inarticulate employee explain what
- The steward can raise extenuating factors.
- The steward can advise an employee against blindly denying everything,
thereby giving the appearance of dishonesty and guilt.
- The steward can help prevent an employee from making fatal admissions.
- The steward can stop an employee from losing his or her temper, and
getting fired for insubordination.
- The steward can serve as a witness to prevent supervisors from giving a
false account of the conversations.
Know Your Rights!
Frequently Asked Questions Regarding Weingarten Rights
Employees (currently whether a member of a union or not) have the right to
insist upon the presence of a co-worker or union representative in an
investigatory interview that is reasonably believed will result in disciplinary
action against the employee. The employee is also entitled to consult with
such representative prior to the investigatory interview.
- What are Weingarten rights?
Weingarten rights currently apply to all employees who have the right to act
concertedly and organize in accordance with the National Labor Relations act.
This, non-supervisory employees in most occupations enjoy Weingarten
rights. In addition, it does not matter whether an employee is a member of
a union. The national Labor Relations Board recently expanded 9again)
Weingarten rights to cover non-union employees in addition to union employees.
- What employees have Weingarten rights?
No. The employee must request the representation. However, the
employee’s request need not be technical or empathic. Nor must the
employee repeat a request for representation where an interview originally not
anticipated to result in disciplinary action against the employee becomes so.
- Do Weingarten rights apply automatically?
Yes, but an employee’s waiver of Weingarten rights must be made knowingly and
voluntarily, and it must be clear and unmistakable.
- Can Weingarten rights be waived?
No. Weingarten rights do not apply where a meeting or conference is
intended solely to impose discipline. Meetings to discuss work performance
problems may or may not invoke Weingarten rights.
- Do Weingarten rights apply to meetings only to impose discipline?
As noted above, in order for Weingarten rights to apply, an employee must have a
reasonable belief that he/she will be subject to discipline as a result of an
investigatory interview. Where an employee has been advised that
disciplinary action will not be taken, Weingarten rights will not apply.
Likewise, day-to-day office conversations or shop-floor discussion will
generally not invoke Weingarten rights, unless an employee has reason to expect
disciplinary action to result. A drug or alcohol test may invoke
Weingarten rights where the test is part of an investigation. Routine
fitness-for-duty tests do not typically invoke Weingarten rights.
- What amounts to a reasonable belief that an investigatory interview
will result in disciplinary action?
In a union setting, an employee has the right to have a union representative or
co-worker present during the investigatory interview. In a non-union
setting, an employee has the right to have a co-worker present. If the
chosen representative is not available, an employer can require the employee to
select another representative. In a union setting, however, the employee
has the right to insist upon the presence of a union representative.
Private Counsel does not constitute ion representation. Similarly,
Weingarten rights do not include the right to have a private attorney present.
- Who may be an employee’s representative?
The representative is not required to remain silent during the interview, but
the representative is not entitled to be hostile or adversarial, in a union
setting the employer is not required to collectively bargain with a union
- May the representative participate in the interview?
An employer may proceed with an investigatory interview without the employee’s
chosen representative when such representative is unavailable. An employer
is not required to unduly delay an investigatory interview. However, the
employee must be provided an alternative representative if requested.
- May employer deny an employee Weingarten rights where a representative
is not available?
Yes. If an employee properly invokes his/her Weingarten rights, the
employer may simply refuse the request and forego the interview. While an
employer may also impose any disciplinary action without utilization of such
interview, such action may suggest retaliation. Of course, the employee
may waive his/her Weingarten rights and participate in an interview without
representation, but employers must ensure that a waiver is knowing and
- May an employer forego the interview rather than honor the employee’s
Yes. It is a violation of the National Labor Relations Act to discipline
an employee for invoking his/her Weingarten rights. Similarly, it is a
violation for an employer to discipline an employee for refusing to waive
his/her Weingarten rights, i.e. participate in the interview without
- Is it a violation to discipline an employee for invoking his/her
Generally, yes. If Weingarten rights do not apply, an employer may
discipline an employee for refusing to participate in an interview absent
representation. Also, if Weingarten rights apply, an employer may
discipline an employee who refuses to participate in an interview even with
- May an employer discipline an employee for improperly or mistakenly
refusing to participate in an interview?
Full make-whole remedies, including reinstatement and back-pay, are available to
an employee whose Weingarten rights have been violated. Where disciplinary
action is taken against an employee based on information obtained apart from the
violative interview, though, make-whole remedies may not be applicable.
- What remedies are available to an employee whose Weingarten rights have
Weingarten rights based upon three sources of law: (1) section 7 of the National
Labor Relations Act, which gives employees the right to act concertedly for
their mutual aid and protection; (2) the United States Supreme Court, which has
endorsed Weingarten rights for unionized employees, and (3) the National Labor
Relations Board, which currently endorse Weingarten rights for union employees.
- What foundation are Weingarten rights based upon?
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Revised: August 13, 2010