Weingarten Rights and the Investigatory Interviews

What are Weingarten Rights?

Represented employees have Weingarten rights only during investigatory interviews, also called fact-finding interviews. The represented employee has the right (thus Weingarten right) to request that a union representative or representative of their choice be present during any investigatory interview if they believe the outcome may result in disciplinary action against them. The U.S. Supreme Court asserted this point in the 1975 case (NLRB vs. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689), and these rights have become known as the Weingarten rights.

When are Investigatory Interviews Conducted?

Investigatory interviews are fact-finding meetings that occur whenever a supervisor needs to obtain information from an employee about an incident, event, and/or actions taken/not taken which could be used as the basis for disciplinary action.  Prior to the interview, the employee is entitled to be informed of the general nature of the matter being investigated. It is the employee’s decision whether or not to consult with his/her representative.
The right to representation during an Investigatory interview is called Weingarten rights. The Administrator is not required to offer union representation, rather, it is up to the employee to ask for it or arrange for it. An investigatory meeting may begin and proceed without the 
employee asking for union representation, or they may decline their right to representation, as a result the meeting and questioning can proceed.  In the event the employee requests union representation, the Administrator is encouraged to end the meeting. Every effort should be made to work with the employee and union representative to reschedule or adjust a meeting time to allow the union representative to be present.
If the union representative that is requested by the employee is unavailable, the employee may request alternate representation. The Employer is not obliged to postpone the interview, nor to suggest or secure the alternate representation; however, the employee shall not be required to answer any questions without a representative present, unless he/she voluntarily chooses to do so. As a result, mutual cooperation and collaboration is encouraged.

Common Mistakes about Weingarten Rights

  • Weingarten rights, or the right to representation does not apply to normal work discussions, interactions, feedback, and meetings that occur between Administrators and the employees they supervise.
  • The right to representation does not apply to meetings held exclusively to inform an employee of the disciplinary decision or the outcome of the disciplinary decision.
  • Representation is also not necessary when an Administrator is delivering an annual performance evaluation.
  • Administrators are encouraged to consider an employees' request to have union representation for a meeting, if the employee believes that discipline may result, even though that is not the purpose of the meeting.

Preparing for the Investigatory Meeting Where Weingarten Rights May Be Requested

  • Prepare as many questions in advance as possible.
  • In order to make efficient use of everyone’s time and to ensure that a fact-finding meeting occurs as scheduled, the Administrator may decide to provide the employee with advance notice of their right to union representation. Advance notice is not required and is only an option to expedite a meeting. Advance notice allows the investigatory meeting to proceed without interruptions or rescheduling because the employee asked for union representation.
  • Please note that many of our campus union representatives can be very helpful during these meetings, by preparing the employee, calming, explaining, providing insight, etc.
  • Administrators may conduct the investigatory meeting without advising the employee of their right to representation.  The reason is because union representation must be requested by the employee; whereas there is no requirement for it to be offered by the administrator. However, if the meeting proceeds and the employee asks for representation, it is not recommended that the meeting continue. New scheduling arrangements need to be made to accommodate the request.
If advance notice will be given, the recommended written/email communication to employee is:
Hi (employee name):
Please make arrangements to attend a 9 a.m. meeting on Wednesday, October , 201_ in e... conference room/my office.  We will be discussing several work related topics, including the events/incident that took place on...  Given the nature of our discussion, please feel free to invite your union representative, if you desire.  Please confirm your attendance. (Get confirmation)
Thank you, ....

Select a Note-taker: It is strongly recommended that the Administrator selects a Note-taker, someone who can take meeting notes and capture the key points of the meeting. Please identify this person’s role at the beginning of the meeting. Having someone else focused on capturing questions and answers in writing frees up the Administrator to ask questions, seek clarification, probe further where necessary, and observe the employees responses.

The Meeting

Suggested Script or Introduction for Investigatory Meeting:

Thank you all for attending today’s meeting. (Make introductions of all those present, if necessary, including the note-taker, etc.) I am conducting a fact-finding investigation regarding the events that took place on.... I will provide specifics, explain in detail, and ask you several questions regarding …. Please feel free to ask me any questions as we go along. If I do not know, I will tell you and will make every effort to find out soon after this meeting and respond. I ask that you be open and honest in all of your responses at all times. If you need time to reflect and think through your answers before answering, please do so. Take a moment before answering and think it through.

Please know that I will not be making any decisions about this matter at this time, including any administrative action. I will compile my notes, consider your responses, gather all information provided, interview others as needed, and conduct a thorough examination of the information gathered as part of this review. The purpose of this meeting is to allow you an opportunity to give me your honest responses and perspective before any action is taken, and before any decision is made. In the event that you would like the University to review any documents or any other relevant item as part of this review, please provide these items by no later than ….(provide a deadline like 1 week, or a reasonable amount of time. Gathering of information should not cause unreasonable delays). If, after this meeting you recall anything else feel free to contact me directly and you can provide me with additional information verbally or in writing.

During the review, you and anyone interviewed will be instructed to uphold any and all University policies which apply, but special focus will be given to refraining from engaging in retaliation against anyone bringing a complaint or concern, and or anyone, such as a witness, who has participated in the fact-finding. University policy states in part that "No person who files a complaint, or who testifies, assists or participates in any manner in an investigation, proceeding or hearing, shall be intimidated, threatened, coerced or discriminated against by any other person within the University community for doing so. Violation of this rule shall result in disciplinary action, up to and including dismissal or expulsion."

Additional Information or Guidance

You are encouraged to contact the campus Employee/Labor Relations staff for further guidance in carrying out the investigatory/fact-finding process, Weingarten rights, and any other question and/or concerns you may have about the collective bargaining agreements.

Contact Information: http://www.cpp.edu/~hr/employee-labor/contact-us.shtml

Rev. 9/25/14