4. The Weingarten Guidelines
1. The employee must request that a union representative be present in the meeting
The right to union representation is triggered only after the employee affirmatively requests representation. That affirmative request can take the form of a straightforward demand, a question, or a request for delay to obtain an alternative representative. However, a statement of fact, such as “I’m here without representation,” is not an affirmative request. Moreover, the employer has no duty to advise the employee of their Weingarten rights. The employee may also intentionally choose to forego these rights and participate in an interview or meeting unaccompanied by a union representative.
The rule is that the employee must request union representation; the employer does not have to offer it!
However, some collective bargaining agreements provide additional protection by requiring the employer to offer union representation even if the employee does not specifically request it. This is an important protection to include in the union contract if possible.
An employee is only entitled to union representation if the meeting is investigatory and the employee reasonably believes discipline may result
In order to have the right to a union representative, an employee must be subjected to an investigatory interview that the employee “reasonably fears” may result in disciplinary action. In Lennox Industries, Inc., the court summarized the limitations on Weingarten representation rights as follows:
Under Weingarten, an employee is entitled to a union representative only when (1) the interview in question is investigatory, i.e., when it is designed to elicit answers to work-related questions which might affect the employee or the bargaining unit, and (2) the employee reasonably fears that discipline might result from the interview.
An employee is therefore not entitled to a union representative if the meeting is called solely to administer discipline without any investigation, for instance if an employer calls an employee into his office simply to announce or apply disciplinary action already decided. Prior to a meeting or interview, an employee may ask if discipline could result from the employer’s questioning; if the answer is no, then the employee cannot exercise any Weingarten rights. The employee should ask again if the subject matter or the nature of the questioning changes.
However, an employer is prohibited from using the issuance of discipline as an excuse to investigate further without a union representative present. If, during a meeting, the employer advises the employee of a disciplinary decision and then seeks additional facts or information, or attempts to have the employee admit their alleged wrongdoing or sign a statement to that effect, the employee would have a right to representation and should ask for it.
An employee may not be entitled to a union representative where the purpose of a meeting is supervisory rather than investigatory, i.e., if the meeting is designed to show an employee how to improve their work performance. The NLRB has held that even if the employee reasonably believed discipline could result from a meeting, Weingarten rights did not arise where the sole purpose of the meeting was to inform the employee of a previously made nondisciplinary administrative decision.
This sometimes puts an employee in a difficult position of being unsure whether to insist upon their Weingarten rights. In El Paso Healthcare System, an employer essentially deceived her employee by claiming a meeting was not investigatory. Prior to the meeting, the employee asked over e-mail, “Will this meeting that you would like to have with me possibly lead to me being disciplined? If so, I would like to have a union rep. present.” The employer responded, “No, it is not… I just need to ask you some questions.” However, the meeting itself was plainly investigatory, and the employee was disciplined thereafter. The NLRB found this to be a violation of the employee’s Weingarten rights.
An employee can assert their Weingarten rights only when the employee has a reasonable belief or concern that an investigatory meeting may lead to discipline. But when is it reasonable to believe there may be discipline? This is based on an objective standard considering all of the circumstances of the case; the understanding of the employee alone does not typically settle the issue.
In Lennox Industries, Inc., the court concluded that an employee’s fear was reasonable even though the employer claimed it intended no discipline. Because the subject matter of the employer’s questioning related to poor work performance and problems with a supervisor, the court found that, from an objective perspective, the employee had a reasonable fear of discipline despite the employer’s claims otherwise. The Court reasoned that, in certain situations, discipline could result notwithstanding an employer’s intentions. For example, “an interview in which work-related questions are asked of an employee, but which the employer does not intend to result in discipline may nevertheless result in discipline if the employee surprises his employer with an answer which the employer finds unsatisfactory or threatening.” Thus, an interview may be investigatory and include a “risk of discipline” even though the employer is not seriously contemplating discipline at the time.
In contrast, in Southwestern Bell Telephone Co., the NLRB found that an employee’s fear of discipline was not reasonable even though the employee was asked to meet with a senior-level manager about one month after his supervisor informed him that he needed to improve his work production and he had been previously referred to the employee assistance program. The Board noted the employee had never been disciplined for production problems, nor had any other employee, and the employee assistance program was not disciplinary. Therefore, the employee was not entitled to a union representative during a meeting with his supervisor.
A 2016 case shows that the NLRB will step in when an arbitrator fails to recognize the employee’s reasonable fear as the dispositive factor. The Board overturned an arbitration award as “palpably wrong” and “repugnant to the Act” where the arbitrator focused on the intent of the employee’s supervisor rather than whether the employee had a reasonable fear of discipline. The Board found that the arbitrator ignored “objective facts,” such as that the employee was called into his supervisor’s office over an issue about which he had been very recently disciplined. The Board held that the proper standard was “the point of view of a reasonable employee rather than the supervisor.” To be clear, however, the test is an objective one from a reasonable employee’s perspective, viewing the totality of the circumstances.
As is clear from these cases and examples, application of the Weingarten Rule in a specific situation will require a fact-intensive analysis and may well be subject to debate. One of the best ways to resolve the rights of employees is through contract language that spells out employees’ rights to a union representative. Sample contract language is provided in Section VII below.
One unique circumstance is where an employee is not obligated to take part in an investigatory hearing and is technically doing so voluntarily. In such cases, there is no requirement that the employee be granted Weingarten rights. In Menorah Medical Center, the NLRB found that a hospital violated the NLRA by denying two nurses’ requests for a union representative when they appeared before the hospital’s peer review committee, which had the authority to determine whether employees met medical standards. However, when the decision was appealed, the court reversed the Board’s finding because the nurses were not obligated or required to participate in the peer review committee meeting.
As a final point, regardless of the circumstance, an employer may not punish an employee for simply requesting a representative because that itself is an act protected by Section 7. This protection exists even if the employee is not entitled to a representative under the law, and the employer may not threaten to impose or actually impose more severe discipline because of such a request.
3. The Weingarten Rule has been extended to polygraph testing and drug testing
When employers use polygraph testing and other forms of lie detectors in discipline situations, employees are entitled to Weingarten rights in all phases of the testing process. Weingarten rights apply to pre-polygraph interviews, the administration of polygraph tests, and post-polygraph interviews.
An employee’s request to be represented by a union representative is an exercise of their rights under Section 7. Disciplining an employee for exercising that right is an unfair labor practice. Therefore, where an employer administers a medical test, for example a drug or alcohol test, as part of an investigation into an employee’s misconduct, the employee has a right to consult with their union representative before consenting to take the test. Note, however, that pre-employment or random drug testing are not part of such an investigation and do not give the employee a right to be represented.
In two recent cases, the NLRB held that an employee’s refusal to submit to an investigatory drug or alcohol test without a union representative cannot be used against the employee, including as evidence of insubordination. This is true even if waiting for the representative would delay the testing process for a reasonable period of time—the employer must afford the employee a reasonable period of time to obtain union representation. Employer policies that treat a refusal to take a drug or alcohol test as a positive test cannot be enforced if the employee was denied their Weingarten rights.
4. If the employee asks for representation, the employer can terminate the interview and make a disciplinary decision without the interview
If the employee requests the presence of a union representative, the employer has three options: (1) grant the request, (2) terminate the interview, or (3) offer the employee the choice of continuing the interview without representation or not having the interview at all. The employer cannot insist on continuing the investigatory interview without union representation. If the employer wishes to continue the interview, it must allow the union representative to be present or obtain the employee’s consent to continue the interview without representation. If the employer fails to follow one of the above three options, the employee’s continued participation in the interview is not considered a waiver of their Weingarten rights.
Note that if the employee chooses not to be interviewed, they may lose the benefit of providing their side of the story:
The employer has no obligation to justify his refusal to allow union representation, and despite refusal, the employer is free to carry on his inquiry without interviewing the employee, and thus leave to the employee the choice between having an interview unaccompanied by his representative, or not having an interview and forgoing any benefit that may be derived from one.
The NLRB recently reiterated that “Weingarten gives employees a right to union representation during investigative interviews, but it does not afford immunity for unexplained misconduct.” However, if an employer chooses to terminate an interview because the employee requests union representation, and subsequently disciplines the employee, the union could file a grievance asserting that the employer did not conduct an adequate investigation.
Therefore, an employer conducting an investigation has a choice to make when an employee asserts their Weingarten rights. The employer may allow the union’s participation in order to obtain the benefits of a full investigation, or refuse the union’s participation and face the possibility of a union grievance should the employee be disciplined.
5. The employee generally has the right to their chosen representative
Generally, collective bargaining agreements allow the union to designate stewards, typically via the union’s own bylaws or internal procedures. Therefore, in the context of an investigatory interview, the employee is generally limited to the steward(s) or representative(s) established by the agreement.
The employee may select a particular union steward or representative to attend the investigatory interview as long as that steward is readily available. An employer’s refusal to allow the employee the representative of their choice when that designated representative is present and available is a violation of the Weingarten Rule. “The selection of an employee’s representative belongs to the employee and the union, in the absence of extenuating circumstances, as long as the selected representative is available at the time of the meeting.”
However, the employer can insist upon an available shop steward or union-appointed representative over the objections of the employee if the employee’s chosen representative is unavailable. If using the representative chosen by the employee would result in an unreasonable delay, the employer may force the employee to accept a different representative.
In Buonadonna Shoprite, LLC, the NLRB held that an employer did not violate the NLRA when it disciplined an employee who, at the advice of the union steward, refused to provide a written statement requested by the employer during an investigatory interview until the particular union representative of his choice could attend. The Board held that the employee’s rights were adequately protected under the NLRA, and the employer was not required to wait for another union representative to be available because the employee’s regular steward was present and available to represent him.
If no union-designated representative is available, the employer must generally wait to conduct the meeting unless the circumstances require an immediate investigation. For example, if the steward is out sick or working elsewhere and there is no other union-designated representative available, the employer must wait until the steward becomes available or advise the employee that they can waive the right to union representation and go ahead with the interview.
In addition, an employee who is a union officer is entitled to representation if requested. The NLRB has found a Weingarten violation where an employer refused to allow an employee who was a union steward to speak with his union representative prior to an investigatory interview.
6. The Weingarten Rule applies to group meetings where management confronts more than one employee at a time
Weingarten rights may also be asserted during group meetings where management confronts more than one employee at the same time. The determining factor is “whether discipline reasonably can be expected to follow.”
In a 2012 decision, the NLRB held in Banner Health System that a blanket instruction to employees to maintain confidentiality during a workplace investigation violates Section 7 of the NLRA, which provides employees the right to engage in “concerted activity” regarding working conditions. However, in 2017, Banner Health was overruled in Apogee Retail LLC, where the Board held that employers could caution workers to keep an investigation confidential while the investigation is underway. This creates the additional question of whether the employer can insist that a union representative keep a conversation confidential as a condition of granting Weingarten rights.
Consistent with the principles discussed above, if the interview is with an employee who is not the possible subject of discipline, under Apogee Retail the employee can be instructed not to say anything, including to their union representative, until the investigation is complete.
7. The employee is entitled to information from the employer regarding the subject of the investigation prior to the meeting
The employee is entitled to know the subject matter of the meeting prior to the meeting itself. Knowing the subject matter of the meeting allows the employee to consider whether discipline may occur and thus whether union representation is warranted. If the stated subject matter of the meeting is benign but the employer begins to interrogate the employee in a manner that may lead to discipline, the employee has a right to union representation. Interview subjects may change, and at any point the employee’s right to union representation could arise.
The NLRB has long required employers to provide unions with the names of witnesses with knowledge related to grievances and discipline. In 2015, the Board overturned longstanding precedent that allowed employers to refuse to provide witness statements. Now, if a union requests witness statements obtained by the employer and the employer argues it has a confidentiality interest in protecting those statements from disclosure, the Board will apply the balancing test set forth in Detroit Edison v. NLRB. Under that case, the NLRB balances the union’s need for the requested information against any legitimate and substantial confidentiality interests established by the employer.
8. The employee is entitled to consult with their union representative prior to the meeting
The NLRB has ruled that, if the employer insists on an immediate interview, the employee and their union representative are entitled to some time to confer privately in advance of the meeting. The employer is not, however, required to provide the employee and the union representative an opportunity to confer during work time if the meeting date is scheduled sufficiently in advance to allow them to confer during non-work time.
In Pacific Telephone, the Ninth Circuit held that it is an unfair labor practice for an employer to refuse an employee the opportunity for a pre-interview conference with their union representative. Failure to grant such a pre-interview conference constitutes an unfair labor practice because, without such a conference, the ability of the union representative to give the aid and protection sought by the employee is seriously diminished.
9. The employer must allow the union representative a private pre-interview consultation with the employee upon request
It is the employee’s responsibility to request Weingarten representation and the employer need not notify the employee of this right. However, once the employee has obtained union representation, the union representative may request, and the employer must grant, a private pre-interview conference with the employee prior to the investigatory interview.
10. The role of the union representative
The union representative must be allowed a chance to speak on behalf of the employee. The employer violates the law when the representative is told they cannot say anything during the investigatory interview. The union representative must be afforded the opportunity to provide “advice and active assistance” to a represented employee. This means the union representative can take reasonable caucuses during the interview to consult with the employee. The union representative cannot, however, disrupt or obstruct the interview.
A union representative may generally assist the employee in answering questions in an investigatory interview, but a recent case demonstrated how an employer may demand to hear directly from the employee. In PAE Applied Technologies, LLC, a disciplinary meeting with seven individuals, including the employee and his union representative, descended into a “cacophany.” The employer instructed everyone in the room not to speak unless called upon and then asked the employee to prepare a written account of the incident under investigation. The employer then allowed the employee to speak with his representative before being questioned about his written statement. The NLRB found that the limitation on speaking did not violate the Weingarten right to “advice and active assistance” because it applied to management and union officials alike and only at the moment when the employee was to provide a factual account of the incident.
In Howard Industries, Inc., the steward showed the employee his notebook, which contained statements the employee had previously made to the steward, and the employee read statements from the notebook while answering the employer’s questions. The NLRB held this did not interfere with the employer’s right to investigate the employee’s alleged misconduct and to hear the employee’s own account.
The union representative may make notes about the interview, but this may have to be done on non-work time. Notes may take the form of written notes or even dictation to a cell phone. Be aware, however, that secretly recording such conversations is illegal in California and some other states. Recordings should not be made by anyone—management, workers, or workers’ union representatives—unless everyone present has consented. Employers may discipline employees in some cases where they engage in such secret recordings.
Remarks made by an employee or union representative during the course of an investigatory meeting constitute protected activity. In Atlantic Steel, the Board established a four-part test to determine whether an employee’s conduct is so egregious that they lose the protection of the National Labor Relations Act. The test considers the following: (1) the place of the discussion, (2) the subject matter of the discussion, (3) the nature of the employee’s outburst, and (4) whether the outburst was, in any way, provoked by the employer’s unfair labor practices. A wider range of conduct would be protected in a grievance proceeding than, for example, on the shop floor, since the potential for disruption on the shop floor is greater than in a private meeting. A union representative who uses a loud voice or asks persistent clarifying questions is protected by the NLRA provided the representative does not engage in threatening behavior, prevent the employer from asking questions, or prevent the employee from answering. In 2020, the NLRB issued a decision modifying Atlantic Steel and replacing it with the so-called Wright Line standard. Under this standard, if an employer can show it would have disciplined an employee for profane, racist, or otherwise abusive comments made outside of activity protected by Section 7, then the worker will not be protected from discipline for uttering such comments in the course of Section 7-protected activity. It is difficult to understand how this will apply in Weingarten meetings, which are generally private meetings. Such conduct should now be considered risky and should be discouraged. Union representatives should refrain from profane and disrespectful conduct and should counsel the employee to do the same.
11. The employer does not have a duty to bargain with the union representative at an investigatory interview
Although the union representative does not have to remain silent, the employer has no obligation to bargain with the union representative. This means, for example, that the union representative cannot force the employer to explain its position during an investigatory interview of an employee. The employer’s presentation of its position can be reserved for a later grievance procedure or other proceeding and is not required in the Weingarten setting.
The union representative is present in order to assist the member in facing management. An individual member will have natural fears and concerns during an investigatory meeting, which may make it difficult for them to present an accurate picture of the matter under investigation. The union representative may be able to bring information into the meeting that will help resolve the issue. However, the employer can decide to disregard that information. The employer may also insist on hearing the employee’s account of the matter under investigation.
As mentioned above, however, the employer cannot force the union representative to be silent. The court reasoned in Texaco:
We agree with the Board here that [the language in Weingarten allowing an employer to “insist” on hearing the employee’s account] is directed toward avoiding a bargaining session or a purely adversary confrontation with the union representative and to assure the employer the opportunity to hear the employee’s own account of the incident under investigation. The passage does not state that the employer may bar the union representative from any participation. Such an inference is wholly contrary to other language in the Weingarten opinion which explains that the representative should be able to take an active role in assisting the employee to represent the facts…. In refusing to permit the representative to speak, and relegating him to the role of a passive observer, the respondent did not afford the employee the representation to which he was entitled.
Although the boundaries of a union representative’s participation are not “precisely defined,” a representative must be given the opportunity to lend “active assistance” and should not be relegated to the role of a passive observer. Indeed, Weingarten itself contemplates the active involvement of a union representative.
This is an important point for union representatives. To be effective, a representative must be forceful and yet respectful. The steward is the equal of the manager for this purpose but should not themselves engage in insubordination.
12. The employee may refuse to attend an interview if they have been denied a union representative, but attendance may be prudent to avoid accusations of insubordination
Although an employee may refuse to attend an interview where they have been denied a union representative, the line between insubordination and a legal refusal to participate in an investigatory interview is thin. If the employer insists on meeting with the employee alone and threatens disciplinary action if they refuse, the employee should be advised to attend the meeting but remain silent. This may be necessary to avoid a situation where the boss could falsely claim not to have refused the employee’s request for union representation. Afterwards, with the assistance of the union, the employee can file a grievance and/or unfair labor practice charge against the employer for insisting the employee forgo the right to representation. This is an extension of the “obey-now, grieve later” provision of most union contracts.
13. An employee is not entitled to a “make-whole” remedy for denial of Weingarten rights; however, the employee is entitled to a “make-whole” remedy if disciplined because of invoking their Weingarten rights or because of their interview conduct
When an employee is disciplined or terminated for demanding their Weingarten rights, it is an illegal violation of the NLRA and the employee is entitled to reinstatement and backpay, also called a “make-whole” remedy. However, if the employer had other cause for terminating the employee, the employer may do so without violating the Act. In a 2015 case called Dupont, the NLRB clarified that a “make-whole” remedy is appropriate when: (1) the discharge decision was based at least in part on the employee’s misconduct during an interview in which they were denied their Weingarten rights; and (2) the employer was unable to show that it would have discharged the employee anyway. 
In the Dupont case, the employee had asked for union representation on multiple occasions and his employer denied those requests and proceeded with the interviews. Later, the employer discharged the employee because of “inconsistent statements” made during its investigations. The NLRB remanded the case back to the judge for a determination of whether the employee’s discharge was based, at least in part, on his conduct during the unlawful interviews. If so, and if the employer could not prove it would have discharged the employee anyway based on conduct outside the unlawful interviews, the employee would be entitled to reinstatement with back pay. Such relief is available where “the employee’s discharge may have been caused, at least in part, by conduct that would not have occurred but for the employer’s violation of the employee’s Weingarten right.”
Generally, where there is no reinstatement and/or back pay available, the remedy ordered by the NLRB for a Weingarten violation is a cease and desist order stating that the employer must allow workers their Weingarten rights in the future and post a notice to that effect.
14. Arbitrators will sometimes grant Weingarten remedies in discipline cases
Sometimes, in the context of labor arbitration, arbitrators will enforce Weingarten requirements as part of a “just cause” analysis. When an employer has not provided due process rights as required under a collective bargaining agreement, the arbitrator may use Weingarten remedies to cure these violations. Arbitrators tend to be more flexible than the NLRB in selecting remedies for procedural violations, and often order reinstatement rather than lesser forms of relief for Weingarten violations. In addition, arbitrators, unlike the NLRB, may find that an employer should have advised its employee of the nature and purpose of a meeting so the employee could decide whether to exercise their Weingarten rights.
Arbitrators can also prohibit the employer from relying on evidence arising from a Weingarten violation, including statements made where the employee was not afforded their Weingarten rights. They may also consider a Weingarten violation as a factor in determining whether to mitigate a discharge to a lesser form of discipline.
Therefore, if confronted with a potential Weingarten violation, it may be prudent to file a grievance under the union contract if possible.
15. Employees working remotely are still entitled to representation
Employees who work remotely, either temporarily or permanently, are still entitled to a union representative at an investigatory interview where they reasonably believe discipline could result. During the COVID-19 pandemic that spread in 2020 and into 2021, many employers implemented or improved the ability to conduct meetings via video conference software. Depending on the circumstances, the employee or union may wish to request a video conference, particularly if the employee works from home. If a video conference is not possible, the employee or union representative should request that all attendees appear by phone (having the union representative appear by phone while the employer and employee are meeting in person could lead to difficulties in representation and should be avoided if possible).
The employee is also entitled to designate their representative and conduct a preliminary meeting with their representative, where reasonable, according to the above principles concerning availability. Opportunities or requirements to work remotely may increase in the future; unions should consider including language specifically addressing this issue in their next contract negotiations.
16. The employee in the non-union setting is not entitled to representation
Non-union workers do not have the right to a union representative or fellow employee in a meeting with management.
In 2000, in Epilepsy Foundation of Northeast Ohio, the NLRB ruled Weingarten rights apply to employees in non-union workplaces. This granted non-union employees the right to have a coworker represent them at an investigatory interview if the employee reasonably believed discipline might result. This was an important new right afforded to non-union employees.
However, in 2004, the NLRB overruled Epilepsy (in a 3-2 vote) and returned to prior NLRB precedent holding that Weingarten rights apply only to unionized employees. In reversing Epilepsy, the NLRB noted that there are “two permissible interpretations of the Act,” and that “policy considerations support the denial of the Weingarten right in the nonunionized workplace.” It is not unusual for the NLRB to change positions on such issues when there is a change in administration.
It is important that Weingarten rights are afforded to workers represented by a union from the moment the union is recognized or when an NLRB election is conducted and the Union is certified after winning the election. Workers have Weingarten rights even when the employer is challenging representation and refusing to recognize the union. Despite its reversal of Epilepsy, the NLRB continues to recognize that an employer’s unlawful refusal to recognize or bargain with a majority union does not defeat an employee’s Weingarten rights.
17. The NLRB defers unfair labor practice charges when a collective bargaining agreement is in existence
Generally, when an unfair labor practice charge is filed during the existence of a contract, the NLRB will defer the charge and wait until the grievance and arbitration procedures have concluded before acting on it. In the context of Weingarten violations, this deferral occurs if the violations are arguably within the “compass or scope” of a provision in the parties’ contract and if the employer is willing to proceed to arbitration and to waive procedural challenges. Unless “clearly repugnant to the purposes and policies of the Act,” the arbitration decision on the unfair labor practice charge will render NLRB action unnecessary, and the NLRB will defer to the decision of the arbitrator.
Thus, where an unfair labor practice charge is filed for a Weingarten violation during the life of a contract, the NLRB will generally defer the charge until after the grievance is resolved. If the eventual decision is “palpably wrong and repugnant to the Act” the NLRB will make an independent finding on the unfair labor practice charge regarding the refusal to provide Weingarten rights.
Weingarten rights are among the most important workplace rights given to unions to protect workers under the National Labor Relations Act. Stewards and other union representatives are first responders in protecting workers in the disciplinary process. Weingarten rights serve an important purpose in workplace democracy. They should be exercised vigorously and responsibly.