Under the U.S. Supreme Court’s 1975 Weingarten rule, employees have the right to have a union representative present at any investigatory meeting they reasonably believe could result in disciplinary action. In a 2001 case, the National Labor Relations Board (NLRB) further clarified employees’ Weingarten rights by ruling that employees have the right to a representative of their choice at these meetings. The U.S. Court of Appeals for the Fourth Circuit recently affirmed the decision.
Now, the U.S. Supreme Court has refused to review the case, which means that a worker’s right to request a specific representative in Weingarten situations has been locked in. Here’s an overview of when Weingarten rights apply and how to manage employee requests for a representative.
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An employee can invoke the right to have a representative of his or her choice attend a meeting if three conditions are met:
- The employee makes the request. You don’t have to notify workers of their Weingarten rights.
- The meeting is investigatory. The meeting can cover a wide range of issues concerning the employee, such as gathering facts about a harassment charge, considering discipline for company policy violations or poor work performance, and investigating criminal activity. A meeting to inform an employee of a disciplinary decision that’s already been made doesn’t count.
- Employee thinks discipline may be imposed. The worker must reasonably believe the interview could lead to discipline.
Nonunion Workers Have Rights, Too
Both union and nonunion workers have Weingarten rights. Nonunion employees are most likely to ask to bring a co-worker to an investigatory meeting concerning harassment or other misconduct complaints. These employees, acting either on their own initiative or at a lawyer’s suggestion, may want the co-worker to act as a witness or to take notes.
Employee Can Choose
In the recent case, Anheuser-Busch Inc. managers refused an employee’s request for a specific union steward because they thought the steward was unavailable at lunch. The appeals court said the employer’s refusal violated the Weingarten rule. The court pointed out that the steward had cut his lunch breaks short in the past to represent employees and he would have returned from lunch within 15 minutes anyway. The court noted that “an employee has the right to specify the representative he or she wants, and the employer is obligated to supply that representative, absent some extenuating circumstances.”
What to Do
If an employee asks to bring a union representative (or a co-worker in the case of a nonunion employee) to a meeting, and you need time to evaluate whether the request is valid, consider postponing the meeting. You also can either: 1) continue the investigation without interviewing the employee, or 2) offer the employee a choice between continuing the meeting without representation or having no meeting.
If you decide to forge ahead with an employee representative attending the interview, keep these points in mind:
- Bring your own witness. In sensitive cases, have another manager present to verify what transpires.
- Don’t question. Your employees, both union and nonunion, have a broad right to bring in the representative of their choice. So don’t question the employee’s pick or the qualifications of the person they choose to accompany them.
- Exclude outsiders. This ruling does not give employees the right to bring in a non-employee representative such as an attorney, friend, or family member.