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Investigative Interviews Weingarten rights Weingarten rights always must be applied whenever you engage in an investigatory interview of a bargaining unit employee. The Supreme Court ruled in 1975 that an employee may insist upon union representation at an employer’s investigatory interview, which the employee reasonably believes might result in disciplinary action. The principles in this decision are known as Weingarten rights. Weingarten rights apply when the meeting is an investigatory interview – when management is searching for facts and trying to determine the employee’s guilt or innocence or where facts elicited at the meeting might ultimately result in discipline or a change in previously imposed discipline. Employee - An employee has Weingarten rights where he or she reasonably believes that discipline or changes in previously imposed discipline could result from the investigatory interview. Whether or not an employee’s belief is “reasonable” depends on the circumstances of each case.
- The employee must affirmatively ask for representation – such as, by responding that he or she will answer questions once a steward is provided.
- The employee has the right to a steward’s assistance – not just a silent presence.
- Employees also have the right to a “pre-interview consultation” with a steward – that is, to meet in advance of the investigatory interview to prepare for the interview.
- Although ELM Section 665.3 requires all postal employees to cooperate with postal investigations, the employee still has the right under Weingarten to have a steward present before answering questions. The employee may respond that he or she will answer questions once a steward is provided. Employees may exercise these rights without reprisal.
Steward - A steward cannot exercise Weingarten rights on the employee’s behalf.
- A steward does have a speaking part in the interview rather than being a silent presence.
Employer - The employer is not required to inform the employee of the Weingarten right to representation.
- Once the employee has requested representation, the employer is required to either:
1. Grant the request 2. Deny the request and offer the employee the opportunity to continue the interview without union representation; or 3. Deny the request and hold no interview at all - The employer would violate the employee’s Weingarten rights if it refused to allow the union representative to speak or tried to restrict the steward to the role of a passive observer.
NOTE: Improperly denying the employee’s request for union representation may have legal consequences for the Postal Service.
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