What the right covers
In NLRB v. J. Weingarten, Inc. (1975), the Supreme Court upheld the National Labor Relations Board's view that a union-represented employee may insist on a representative in an investigatory interview the employee reasonably believes might result in discipline. The test is the employee's reasonable belief, not the employer's stated purpose.
What it does not cover
- Routine conversations about work instructions, training, or performance feedback that are not investigatory.
- Meetings called only to deliver discipline that has already been decided, as long as the employer does not start asking investigatory questions.
- Employees who do not ask. Employers generally have no duty to tell members about the right.
- Under current NLRB precedent, non-union employees.
How members invoke it
The member should ask clearly, before or during the interview, for example: "If this discussion could lead to discipline, I respectfully request that my union representative be present. Until my representative arrives, I choose not to answer questions." Once the request is made, the employer has three lawful options: grant it and wait for the representative, end the interview, or give the member the choice to continue without representation or have no interview. The employer may not continue questioning while denying the request.
What the steward can do in the room
- Ask about the subject of the interview beforehand and meet privately with the member before questioning begins.
- Clarify questions and help the member answer accurately.
- Add information and point to witnesses or facts the employer should consider.
- Object to harassing or misleading questions, while not obstructing a legitimate investigation or answering for the member.
Different rules for different workforces
- Federal employees: a similar right exists by statute, 5 U.S.C. 7114(a)(2)(B), and agencies must inform employees of it annually.
- State and local public employees: rights depend on state law and the contract, and many states follow Weingarten.
- Airline and railroad workers: they are covered by the Railway Labor Act, not the NLRA, so representation rights in interviews usually come from the collective bargaining agreement.
Weingarten and fair representation
A union's duty of fair representation, recognized in Vaca v. Sipes (1967), requires it to represent all members of the bargaining unit without acting arbitrarily, discriminatorily, or in bad faith. It does not require taking every grievance to arbitration. Prepared members make that duty easier to meet: they ask for representation at the right moment and arrive with a clean, dated record.
That is the focus of the Workplace Intelligence member partnership: we prepare members, and stewards represent them. See Unions and Associations.
"Most representation problems start before the steward is ever called. The member did not know to ask, or did not know what to bring."
Noël Tarquinii, SHRM-SCP