From the Massachusetts Nurse Newsletter
September 2004 Edition
By Joe Twarog
Associate Director, Labor Education & Training
Unionized employees have a unique right to union representation during investigatory interviews conducted by their employer. These rights are known as "Weingarten rights," named after a 1975 U.S. Supreme Court case (NLRB vs. Weingarten, Inc. 420 U.S. 251).
These rights must be invoked by the employee herself, and may be used only during investigatory interviews when an employee is questioned by a supervisor to obtain information which then could be used as a basis for discipline. The employee does not have Weingarten rights to union representation if a supervisor is meeting to discuss a clinical issue or other "direction of work" matter, as long as potential discipline is not involved. Also, an employee would not have such rights if the employer is simply announcing discipline already decided.
These rights therefore must be exercised by the employee using her individual reasonable judgment. It may not always be clear what the meeting may be about, so the employee should always ask in advance the nature of the meeting. It is the employee’s responsibility to be aware of these rights and to request them. Management is not required to inform the employees of these rights unless it is so stated in the contract.
If the employee makes a request for union representation (prior to the start of the meeting, or during the course of the meeting if the tone changes) management has several options:
- It can stop the meeting until the union representative arrives.
- It can deny the request and call off the meeting immediately.
- It can ask the employee to voluntarily relinguish his/her rights and proceed with the meeting. The employee should decline this option.
Management can also proceed with the meeting without the union representative present despite the request. This option of course violates the employee’s rights and would result in legal action. In this instance the employer commits an unfair labor practice and the employee may refuse to answer the employer’s questions.
There are other rights that employees have under the Weingarten decision. The employee is entitled to information from the employer regarding the subject of the investigation prior to the meeting. The employee is entitled to consult with the union representative prior to the meeting. An employee may even refuse to attend an interview when denied union representation by the employer, but by exercising such a legal right to refuse invites the charge of insubordination. In such instances it would be safer for the employee to attend but remain silent while taking notes. Weingarten rights also aply to group meetings when management interviews more than one employee at a time.
The Weingarten rule has been interpreted and extended by the NLRB and U.S. Courts of Appeal in various decisions over the years. The most significant recent decision by the NLRB this June takes back Weingarten rights from non-union workers. This is the fourth reversal in 30 years on this issue. Therefore, non-unionized employees no longer have the right to have a co-worker present during an investigatory interview by the employer that could lead to discipline as ruled by the NLRB by a 3-2 ruling (IBM Corp., 341, NLRB 148, June 9, 2004). In part, the NLRB explained its reversal by citing "new policy considerations" stating: "The years after the issuance of Weingarten have seen a rise in the need for investigatory interviews, both in response to new statutes governing the workplace and as a response to new security concerns raised by terrorist attacks on our country," and, "Further, because of the events of Sept. 11, 2001 and their aftermath, we must now take into account the presence of both real and threatened terrorist attacks. We hold that the Weingarten right does not extend to the non-union workplace."
A statement that summarizes "Weingarten rights" is:
"If this discussion/interview could in any way lead to me being disciplined or terminated, I respectfully request that my union representative be present at the meeting. Until my representative arrives, I choose not to participate in this discussion."
The MNA has produced small, laminated cards with this statement imprinted on one side and other important, related information imprinted on the other. These cards can be easily attached to an employee’s ID lanyard. Please contact the MNA office at 781.821.4625 or your MNA associate director for a supply of these cards for the membership in your bargaining unit.