A primer
By Kaitlyn Dunphy, Esq.
You may have heard a fellow association member use the term “Weingarten rights” before, but do you know where that name comes from and what those rights are? The term refers to a case the Supreme Court of the United States decided back in 1975, National Labor Relations Board v. Weingarten.
Leura Collins worked at the lunch counter at a Weingarten store and was accused of theft by her employer, accusations she was quickly cleared of. But in the process of the employer’s investigation, Collins asked for a union representative to be present and was denied that request. As a result of the ensuing litigation, the courts found that the federal labor law gave her the right to have a union representative present during that investigatory interview, and thus “Weingarten rights” were born.
Since the Weingarten case was decided under federal law applicable to the private sector, Weingarten rights did not belong to New Jersey public sector union members until the Weingarten case was adopted by the Public Employment Relations Commission (PERC) in 1979. It wasn’t until much later, in 1996, that the New Jersey Supreme Court blessed PERC’s adoption of Weingarten rights.
What are Weingarten rights?
Weingarten rights empower a worker to request a union representative’s presence and assistance at an investigatory interview that the employee has a reasonable belief may result in discipline. If the worker invokes these rights, the employer has the following options: to allow representation at the interview, to discontinue the interview, or to offer the employee the choice of continuing the interview unrepresented or having no interview.
You will notice that the worker must request the assistance of a union representative. The employer has no obligation to automatically include the representative in the interview if a request is not made, which is why education around Weingarten rights is so important. The right must be invoked by the union member.
Weingarten rights apply only when the worker has an objectively reasonable belief the interview may lead to discipline. They do not apply to meetings where a disciplinary decision that has already been made is being communicated, or to other noninvestigatory conversations with a supervisor, such as giving feedback, instructions, or training. This is not to say that union members are without rights in these scenarios, of course, but that Weingarten rights are not involved.
What should I do if the request is not honored?
Members should not refuse to attend a meeting called by an administrator, as that would make one vulnerable to accusations of insubordination. Instead, you should attend the meeting and make your request for a Weingarten representative clear. You can ask for clarification on the purpose of the meeting to confirm that it is an investigatory interview and your belief in possible disciplinary action is reasonable.
You should insist on your Weingarten rights until the employer allows for your representative to attend the interview, the interview is discontinued, or you are offered the choice between an unrepresented interview or no interview.
You should not answer any questions without your representative present. Note that you cannot insist on a particular union representative of your choice be present, though you can certainly state your preference. Which representative attends the meeting may depend upon availability.
What is the Weingarten representative’s role?
The Weingarten representative is there to be the member’s witness and advocate during the meeting. However, the representative cannot obstruct the investigation or turn it into an adversarial proceeding. The employer, on the other hand, cannot compel the representative to remain silent.
The representative is there to assist the employee. They are entitled to information about the interview that will give them the ability to perform their duties as a union representative. They can ask that the employer’s questions be clarified, object to intimidation tactics, and inform the employer of additional information that supports the member’s position. The representative can also ask to privately caucus with the member and advise them on how to answer the questions, although they cannot answer instead of the member.
In short, the Weingarten representative is there to support the member, protect their rights, guard against overstepping by the employer, and help the member clearly set forth their position.
Kaitlyn Dunphy is an associate director of NJEA Legal Services and Member Rights in the NJEA Executive Office. She can be reached at kdunphy@njea.org.