Weingarten

NLRB v Weingarten, Inc. 420 US 251 (1975)

It should be noted that Weingarten was ruled on for private sector employees.  While it is beneficial to know and understand the application, there has not been case law in Utah to determine if it currently covers public sector employees. There may be additional protections offered specifically through a Collective Bargaining Agreement.  You should consult your CBA, if applicable.

The employer violates the individual right of an employee’s right “to engage in concerted activities for mutual aid or protection..” when they deny the employee’s request for the presence of their union representative at the investigatory interview that the employee reasonably believed would result in disciplinary action.

When you have the right to demand the presence of a representative:

  • Where the employee has a reasonable expectation that discipline may result.
  • Where the purpose of the meeting or interview is to investigate an employee’s allegedly inadequate work performance or other misconduct, where discipline of any kind is a possible result.
  • Where the purpose of the interview or meeting is to elicit facts, the employees “side of the story”, or to obtain admissions or other evidence either to determine whether or not discipline is warranted OR to support a disciplinary decision already made.
  • Where the employee is required to explain or defend their conduct in a situation where the employee reasonable fears could affect their working conditions or job security.

Weingarten

 

Whenever being questioned administratively or even casually by a supervisor (as opposed to during a criminal investigation), a member must request a representative be present anytime the member subjectively believes that answering management’s questions could lead to disciplinary action. Management does not have to advise the member of the right to a representative unless a collective bargaining agreement requires management to advise the member of the right to representation.

 

©2012 National Fraternal Order of Police

 

 

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