Today’s Burning Question: How does the Weingarten Rule apply during an administrative investigation when the union representatives will not make themselves available for the employee?
Answer: The short answer is that a union that plays that game, plays it at the peril of their own member – but the burden will be on management to prove that the union was given a reasonable opportunity to attend the meeting and chose not to.
The Weingarten Rule came from a very important labor case, NLRB v. Weingarten, Inc., 420 U.S. 251 (1975), a private sector case under the National Labor Relations Act. Weingarten held that it is an unfair labor practice to deny union representation to an employee who requests it prior to or during an investigative interview.
Weingarten has been recognized universally throughout the United States for both private and public sector employees. The rationale for the Weingarten rule is that employees have a right to engage in concerted action for mutual aid and protection, and that denying an employee union representation during a disciplinary meeting or hearing violates that right.
Union firefighters and fire service managers need to understand several key points about Weingarten rights:
- The meeting must be investigatory in nature. When the purpose of a meeting is simply to discuss or convey management’s complaints about the employee’s performance in a non-disciplinary manner, the employee’s Weingarten rights have not been denied by not having a union representative present.
- The right to have a union representative present applies only in situations where an employee reasonably believes that the investigation will result in disciplinary action.
- The employee must request that a union representative be present, or the right is considered to be waived. Weingarten does not require an employer to warn an employee of the right to union representation.
When Weingarten rights are violated, the employer is liable for an unfair labor practice, and the employee may not be disciplined based upon the information obtained from the improper questioning.
If an employee asks for union representation for an investigative meeting, the questioning should be stopped pending the arrival of a union representative. Once present, the union rep has the right to be informed of the subject of the investigation, and given an opportunity to confer with the employee privately before questioning begins. During the interview, the union rep may interrupt if necessary to clarify a question or object to intimidating and/or confusing tactics.
The reasonableness of the time that must be granted for the union rep to arrive is a function of the facts of the case. The time of day, the availability of a union representative on duty, the potential need to locate an off-duty rep if an on duty rep is not available, etc. all factor in. Also – the member has a right to a union rep, but not necessarily the union rep of his/her choosing.
An investigator seeking to question an employee who has asked for a union rep, must be able to prove he/she acted reasonably under the circumstances in terms of notifying the union and waiting for the rep to arrive. Document the efforts made to reach the union and the length of time it takes for the rep to arrive.
There is no bright line rule such as 20 minutes or 2 hours. It is based upon what is reasonable under the circumstances. Given the consequences of violating Weingarten, it is probably better to err on the side of caution.