Weingarten: The Right to Representation

Weingarten rights guarantee an employee the right to union representation whenever an employer’s investigatory interview could lead to discipline. The following Q&A was prepared by the MTA Legal Services Division to acquaint MTA members with the extent and limits of these rights.

An employee’s right to have union representation in an investigatory or predisciplinary meeting was established for private-sector employees in a 1975 United States Supreme Court decision, NLRB v. Weingarten, Inc. The Massachusetts Department of Labor Relations has adopted the Weingarten rules for public employees covered by M.G.L. c.150E.

Questions & Answers
WHICH SITUATIONS GIVE RISE TO WEINGARTEN RIGHTS?
  • Weingarten rights arise when the employer is investigating an incident or an allegation and the employee being questioned has a reasonable expectation that the investigation may result in his or her own discipline.
  • An employee is entitled to union representation if the employer is investigating an employee’s alleged misconduct or inadequate work performance and convenes a meeting to elicit facts or get the employee’s “side of the story.”
  • Or, the employer may be investigating a situation in which the “wrongdoer” is unknown. If an employee believes his or her participation in the investigation could lead to discipline, the employee is entitled to union representation.
  • Weingarten rights can arise at any stage of an investigation. The employer may not have gathered any facts yet, may have some facts but not yet know whether discipline is warranted, or may have enough facts to know that some form of discipline is likely. What matters is that as soon as the employer seeks to discuss the issues or allegations with an employee who reasonably thinks he or she could be disciplined as a result of the investigation, the employee is entitled to have a union representative.
Which Situations Do Not Give Rise to Weingarten Rights?

An employee is not entitled to union representation if:

  • The meeting or discussion is merely for the purpose of conveying work instructions, training or needed corrections.
  • The purpose of the meeting is simply to inform the employee about a disciplinary decision that has already been made and no information is sought from the employee.
  • The employer has clearly and overtly assured the employee prior to the interview that no discipline or adverse consequences will result from the interview.
  • The employee initiates the discussion after the employer has made it clear that the matter may have disciplinary consequences.
DO JOB PERFORMANCE REVIEWS OR EVALUATION CONFERENCES GIVE RISE TO WEINGARTEN RIGHTS?
  • Arguably, yes, if the employee’s performance has been under scrutiny and the employee reasonably believes that his or her job is in jeopardy. However, the right is unlikely to apply to classroom observations.
HOW ABOUT "COUNSELING" SESSIONS WITH SUPERVISORS REGARDING ABSENTEEISM OR DRUG OR ALCOHOL PROBLEMS?
  • Yes, if the employer is seeking information from the employee and has given the employee a reasonable basis for believing that discipline or termination might result from the problems under discussion.
    WHAT CONSTITUTES A “REASONABLE EXPECTATION” THAT DISCIPLINE MAY RESULT?
    • The test is objective, not subjective. In other words, what the employee actually and personally believes regarding the possibility of discipline is not the test. What matters is whether the employee is reasonable in believing that discipline might result. The objective facts surrounding the investigation are important. If the employer says, “You may be disciplined based on what I learn,” then obviously the employee has good reason to invoke Weingarten rights. But a “reasonable expectation” that discipline could occur can arise from many other factors. Has the employer provided any oral or written warnings about the conduct in question? Is the employer investigating specific allegations of misconduct? Has the employee been under scrutiny previously? Have other employees been disciplined for conduct similar to that being investigated at this meeting?
    • If the employer states that no discipline will result from the meeting or investigation for the employee being questioned, then the employee does not have a right to union representation. But then, of course, the employer cannot impose discipline, regardless of what it learns. Imposition of discipline following such a promise is an unfair labor practice.
    WHAT IF THE EMPLOYER STATES THAT A DISCIPLINARY DECISION HAS ALREADY BEEN MADE, BUT THEN BEGINS TO QUESTION THE EMPLOYEE ABOUT HIS OR HER CONDUCT?
    • The cases are unclear on this situation. We recommend that employees ask for representation at any point in the meeting when the employer solicits information from them. Seeking such information suggests that the employer is trying to support or possibly alter its disciplinary decision, which would give rise to Weingarten rights.
    DOES THE LOCATION OF THE INTERVIEW MATTER?
    • No. Whether the questioning is in the superintendent’s office or in the hallway, the employee is entitled to union representation if the questioning could reasonably lead to discipline.
    DOES THE EMPLOYER HAVE TO INFORM YOU ABOUT YOUR WEINGARTEN RIGHTS BEFORE CONDUCTING THE MEETING OR INTERVIEW?
    • No. Employees must know their own rights and ask for union representation.
    HOW AND WHEN SHOULD AN EMPLOYEE REQUEST REPRESENTATION?
    • As soon as the employee becomes aware, or reasonably believes, that the employer is seeking information that may result in discipline or that is intended to support a disciplinary decision, the employee should simply state the desire to have a union representative present.
    • The request does not have to be in any particular form, nor does it have to be in writing. Even a question such as, “Shouldn’t I have a representative here?” is enough to trigger the employer’s Weingarten obligations.
    • The employee can make the request at any time before or during the meeting. (However, the employer will be permitted to use any information obtained before the request has been made, as long as the employer provides Weingarten rights promptly upon the employee’s request.)
    WHAT MUST THE EMPLOYER DO WHEN AN EMPLOYEE HAS REQUESTED UNION REPRESENTATION?
    • The employer cannot proceed with the interview at that point. It must either stop the meeting until the representative arrives and has had a chance to consult privately with the employee or postpone the meeting until another day when union representation is possible. The employer can also decide to forgo the interview entirely.
    WHAT SHOULD THE EMPLOYEE DO IF HE OR SHE IS UNSURE WHETHER A PARTICULAR MEETING CALLS FOR WEINGARTEN RIGHTS?
    • When in doubt, speak up. There is no harm in asking for union representation. The employer cannot discipline an employee simply for asking. An employee should also feel comfortable asking whether the meeting could result in disciplinary action. If the answer is anything but “no,” the employee would be reasonable in asking for representation.
    • Cautionary Note: An employee may not be protected if he or she refuses to participate in a meeting that is subsequently found to lack Weingarten status. Therefore, we recommend that employees consult with their association representatives for advice about their rights any time they are called to a meeting with the employer.
    IF THE EMPLOYER INSISTS THAT THE MEETING CONTINUE WITHOUT A REPRESENTATIVE, MAY THE EMPLOYEE REFUSE TO ANSWER QUESTIONS OR EVEN LEAVE THE MEETING?
  • Arguably, yes. An employer cannot discipline or discharge an employee for refusing to surrender his or her Weingarten rights to representation. If it is truly a Weingarten situation, the employee may remain silent or even leave and return to his or her normal work duties.
  • However, given the complexity and unpredictability of the law, it is often prudent for the employee to comply with the employer’s directives, knowing that he or she might later be able to overturn any discipline that results from the unlawful meeting. Otherwise, the employee risks being disciplined for insubordination.
  • CAN THE EMPLOYEE INSIST ON A PARTICULAR REPRESENTATIVE? DOES IT HAVE TO BE AN ASSOCIATION REPRESENTATIVE?
  • The employee may choose a preferred representative, whether it is a union official or another employee, as long as the choice does not unduly disrupt the employer’s ability to conduct the investigation. In practice, this usually means that the employer should try to comply with the employee’s request, even if it means some delay in scheduling the meeting.
  • On the other hand, the employee can’t expect the employer to postpone the meeting unreasonably. The reasonableness of either the employer’s or the employee’s behavior can only be measured on a case-by-case basis.
  • DOES THE EMPLOYER HAVE TO GIVE RELEASE TIME TO THE REPRESENTATIVE REQUESTED BY THE EMPLOYEE?
  • The general rule is that the employee may choose a representative if that person is “available.” If the interview or meeting is scheduled sufficiently in advance so that the representative can meet with the employee on off-duty time, then they will be required to do so. Of course, the local collective bargaining agreement may also provide for release time in these situations.
  • If off-duty consultation is not possible, the employer must provide release time to the representative who is on the premises unless the employer can establish some overriding management need that would preclude doing so.
  • IF AN EMPLOYER HAS PROVIDED ALL THE NECESSARY WEINGARTEN RIGHTS, MAY AN EMPLOYEE REFUSE TO ANSWER QUESTIONS?
    • •No, unless the matter under discussion has criminal implications. Generally, an employee does not have the right to remain silent, as long as his or her representational rights have been honored; nor may the association representative direct the employee to remain silent.
    • Important Note: A public school employer is a branch of government to whom the Fifth Amendment to the U.S. Constitution applies. If the employer’s questions concern matters that could lead to criminal liability for the employee, the employee has a right to remain silent. It is important to have legal representation in these circumstances.
    WHAT ARE THE REPRESENTATIVE'S ROLE, RIGHTS AND DUTIES AT A WEINGARTEN MEETING?

    While Weingarten meetings are not “bargaining sessions,” the association representative may insist on the right to:

    • Be informed about the subject matter of the meeting.
    • Consult privately with the employee before the meeting.
    • Speak and be proactive during the interview, as long as doing so does not interfere with or disrupt the meeting.
    • Advise and counsel the employee.
    • Provide additional information to the employer at the end of questioning.
    • Bear witness to the proceedings and take notes.
      CAN AN EMPLOYEE “WAIVE” HIS/HER WEINGARTEN RIGHTS? HOW?
      • Yes. If an employee does not affirmatively ask for representation, he or she will be considered to have “waived” his or her rights. However, as noted earlier, the request for representation does not involve any “magic words.”
      • If the employer claims that the employee chose to continue the interview without representation, the employer must demonstrate that the choice was voluntary, clear and unmistakable. For example, if the employee elected to go forward without a representative only after the employer told him, “Things will be worse for you if you insist on having the association present,” then the choice would not be deemed “voluntary.”
      WHAT REMEDY IS AVAILABLE FOR VIOLATION OF WEINGARTEN RIGHTS?
      • An employer commits a prohibited practice under Chapter 150E if the employer (1) refuses an employee’s request for representation during an investigatory or disciplinary meeting or otherwise withholds the full panoply of Weingarten rights; (2) disciplines an employee for asserting his or her Weingarten rights; (3) threatens or coerces an employee exercising Weingarten rights; or (4) threatens or disciplines an association representative for assisting an employee in a Weingarten meeting.
      • The state Department of Labor Relations will order the employer to rescind any retaliatory threats or discipline imposed because an employee or association representative exercised Weingarten rights. Moreover, if the commission finds that the discipline ultimately imposed by the employer was affected by the information obtained at the unlawful meeting, or was affected by the fact that no association representative was present, then the commission will also order that discipline rescinded. The commission will also order the employer to post a notice of the violation.
      • Arguably, information obtained at a meeting in violation of Weingarten rights should be excluded from any eventual discharge or discipline arbitration.