In 1975 the US Supreme Court issued a decision in a case called Weingarten. This decision established the principle that an employee has the right to union representation during an investigatory interview conducted by management. What this means is that when an employee is questioned about alleged misconduct and has a “reasonable fear” that his/her answers may subject him/her to disciplinary action, the employee, upon request, must be provided with a union representative.
A distinction is made between investigatory interviews and disciplinary meetings. In the former case, management is questioning the employee. In the later case, it is simply calling in the employee to announce or impose disciplinary action. Thus, in a disciplinary meeting, the employee does not have the right to union representation. However it is good practice for the employee to request a union representative anyway, as the employer may allow it as a matter of practice.
There is also another possible scenario involving an interview: one where management seeks to question an employee, but pledges in advance that no matter what the employee says during the interview, no disciplinary action will be take against him/her. In this case, the employee also does not have a legal right to a union representative, but should be encouraged to request it anyway.
Your responsibility as a union representative attending an investigatory interview is to protect the employee from unfair and arbitrary management conduct and from self-incrimination. These are the things you have the legal right to do:
(1) insist that management inform you of the subject of the interrogation in writing before the interview; for example, missed classes or alleged sexual harassment.
(2) meet with the employee yourself before the interview to find out his or her side of the story. This should not be a problem, since management at our institutions usually schedules these interviews in advance. However, even if management insists that the interview proceed on the spot, you have the right to take the employee aside for a brief private interview, where you can advise the employee how to respond to expected questions.
After interviewing the employee
yourself, you will have an important decision to make. If it appears that the employee may be liable
for serious disciplinary action, you should contact the Council for assistance. If management won’t wait, and there is any
danger that the employee may incriminate himself, advise the employee to refuse
to answer any questions. Even if
management threatens to discipline the employee for insubordination, this is
preferable to admitting guilt to charges that could result in severe
discipline. In the alternative, you
might consider recommending that a clearly guilty employee answer, “I don’t
know” or “I don’t remember.” It is not
(3) assuming the interview proceeds, you have the right to interrupt management’s questions to clarify the issues or to object to confusing or intimidating tactics.
(4) confer with the employee during the interview for the purpose of giving him/her advice on how to answer questions. You have the right to take a break from the interview for this purpose.
(5) make a brief statement at the end of the interview to support the employee’s case.
that management directly provide the
If management proceeds with an investigatory interview, despite the employee’s request for union representation, or if it interferes with the union representative’s right to participate in the manner described above, it may have committed an unfair labor practice. Contact the Council. It may determine that a “ULP” charge on the local union’s behalf is appropriate. The Public Employment Relations Commission will likely overturn any discipline that results from such an interview.
As state institutions, our colleges and universities are also bound by a NJ Supreme Court case to conduct “Loudermill hearings” before imposing any disciplinary action. These are the functional equivalent of “Weingarten interviews” inasmuch as the employee is summoned to respond to charges that may result in disciplinary action. In the Council’s view, the same rules apply.