• “Weingarten rights” refer to a union employee’s right to have a union representative present during an interview that might result in disciplinary action.
• This right may be extended to all employees.
• A state may have an exception to the employment at-will doctrine with relation to unions.

Occasionally, situations arise where it is necessary to discipline employees. This usually occurs when their conduct adversely affects the efficiency or operation of the workplace or the work environment. If employers operate in a union environment, they should consult the collective bargaining agreement (CBA) where discipline policies are concerned.

When imposing discipline in a union environment, employers must take the CBA into consideration. It usually spells out procedures for progressive discipline and will normally state that employers may discipline or terminate employees only “for cause.” This is a departure from employment-at-will, where they may fire someone for any reason, if it isn’t:

• Discriminatory; or
• Counter to any federal or state legal protection.

Weingarten Rights

The term “Weingarten rights” refers to a union employee’s right to have a union representative present during an interview that:

• Might result in disciplinary action; or
• The employee reasonably believes could lead to disciplinary action.

The term comes from the case National Labor Relations Board v. J. Weingarten, ruled on by the Supreme Court in 1975. The case came about when a clerk was questioned by her employer regarding allegations of theft. The employer denied several of her requests to include her shop steward in the investigation interview.

Currently, this right does not apply in a non-union operation. However, in the past, the National Labor Relations Board (NLRB) has extended it to all employees. Employers should check with their labor counsel for its current status before declining such a request.

This right does not apply to all meetings or interviews, only to those that could result in discipline. However, a few restrictions apply:

• The Weingarten right applies only to union representatives. It does not apply to attorneys, non-employees, or supervisors. In addition, the requested representative must be reasonably available.
  • In one case, an employee requested a friend who worked from home, 120 miles from the place of employment. The court found that the employer’s refusal to allow the friend’s presence did not violate the Weingarten right.
• Organizations are not obligated to remind an employee of Weingarten rights. However, employees do have the right to know the subject of an interview.
• The requested union representative must be available. Employees cannot delay an interview to wait for an unavailable representative. If the preferred representative is not available, they must choose another.
  • In one case, an employer refused a request for a union steward because the steward was on a lunch break. The court ruled that this was a violation because the steward was on the premises and was scheduled to finish the lunch break in 15 minutes. Therefore, the steward was “available.” Unfortunately, the court did not define availability beyond this ruling.
• Simply informing an employee of disciplinary action, without conducting an interview, does not violate the employee’s Weingarten rights.

At-will employment exceptions

The employment-at-will doctrine states that when employees do not have a written employment contract and the term of employment is of indefinite duration, employers can terminate them for:

• Good cause
• Bad cause
• No cause at all

Of course, that reason cannot be an illegal one, such as one based on discrimination because of:

• Age
• Sex
• Race
• Any other protected category

A state law may have an exception to the at-will doctrine with relation to unions.

Find more information about state at-will exceptions for Maine, New York, and Texas here.