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
- 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 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 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 discipline could be imposed as a result of the investigation, the employee is entitled to have a union representative.
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.
- Arguably, yes, if the employee’s performance has been under scrutiny and the employee reasonably believes their job is in jeopardy. However, the right is unlikely to apply to classroom observations.
- 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.