"The Weingarten Rights" is a term used to describe the guarantee of employees to request union representation during some interviews. These rights were established in 1975 by the United States Supreme Court as the result of an unfair labor practice proceeding brought before the National Labor Relations Board (NLRB) on behalf of Leura Collins, an employee of food chain outlet J. Weingarten, Inc. The court ruled that employees have a right under Section 7 of the National Labor Relations Act to the presence of a union representative during any inquiry in which the employee is in danger of being terminated.
An investigatory interview as defined by the Weingarten Rights is one in which a supervisor interrogates an employee either to discover information that can be used for disciplinary purposes, or to allow the employee to explain his conduct. An employee participating in an investigatory review has the right to request a union representative if he has reasonable belief that some sort of discipline or termination may occur from what he says. The supervisor is not obliged to ask the employee if he wants union representation present; it is the duty of the employee to demand it.
When the employee makes a request, the supervisor has three options: grant permission for union representation, deny permission and instantly end the interview, or give the employee the choice of having the interview without union representation, or have the interview ended immediately. If the supervisor continues the interview after denying the employee's request for representation, he is conducting an unfair labor practice under employment law, and the employee can refuse to answer any more questions. Although the employee cannot be disciplined for such refusal, he is required to remain at the scene until the supervisor ends the interview, because leaving constitutes punishable insubordination.
The Weingarten Rights also apply to the union representative. In addition to private consultation with the employee, the union representative must be informed of the subject matter of the investigatory interview before it is conducted. During the interview, he can ask for clarification of questions that the supervisor asks and give the employee advice on how to answer them. The union representative, however, does not have the right to tell the employee to refuse to give answers or to give false ones.
Since the establishment of the Weingarten Rights, the NLRB has repeatedly extended and retracted its protection. While the right itself has never been removed, the board has changed its position several times concerning its application to nonunionized workplaces. The NLRB has extended the Weingarten Rights to nonunion employees in one Supreme Court case, only for it to reverse its decision in a subsequent one.
