What is an Investigatory Interview?
An investigatory interview is one in which a Supervisor questions an employee to
obtain information which could be used as a basis for discipline or asks an
employee to defend his/her conduct. If an employee has a reasonable belief that
discipline or discharge may result from what s/he says, the employee has the right
to request Union representation.
Examples of such an interview are:
- The interview is part of the employer's disciplinary procedure or is a
component of the employer's procedure for determining whether discipline will be
imposed.
- The purpose of the interview is to investigate an employee's
performance where discipline, demotion or other adverse consequences to the
employee's job status or working conditions are a possible result.
- The purpose of the interview is to elicit facts from the employee to
support disciplinary action that is probable or that is being considered, or to
obtain admissions of misconduct or other evidence to support a disciplinary
decision already made.
- The employee is required to explain his/her conduct, or defend it
during the interview, or is compelled to answer questions or give evidence.
It is an obligation of the Union to educate bargaining unit employees about their
Weingarten rights BEFORE an occasion to use them arises. An employee
must state to the employer that he/she wants a Union representative present; the
employer has no obligation to ask: the employee if she/he wants a representative.
Weingarten Rules
When an investigatory interview occurs, the following rules apply:
Rule 1 - The employee must make a clear request for Union representation
before or during the interview. The employee can't be punished for making this
request.
Rule 2 - After the employee makes the request, the supervisor has 3
options. S/he mug either: Grant the request and delay the interview until the Union
representative arrives and has a chance to consult privately with the employee: or Deny the request and end the interview immediately; or Give the employee a Choice of: 1)having the interview without
representation or 2) ending the interview
Rule 3 - If the supervisor denies the request and continues to ask
questions, this is an unfair labor practice and the employee has a right to refuse
to answer. The employee cannot be disciplined for such refusal but is required to
sit there until the supervisor terminates the interview. Leaving before this
happens may constitute punishable insubordination.
Union Representative's Rights Under Weingarten
You are not required to merely be 'silent witness'. You have the right to: be informed by the supervisor of the subject matter of the interview take the employee aside for a private conference before questioning begins speak during the interview request that the supervisor clarify a question so that what is being
asked is understood give employee advice on how to answer a question provide additional information to the supervisor at the end of the
questioning. You do not have the right to tell the employee not to answer nor, obviously, to
give false answers. An employee can be disciplined for refusing to answer questions.
A standard statement to suggest to members is:
"If this discussion could in any way lead to my being disciplined or discharged,
request that my Union representative be present at the meeting. Without
representation, I choose not to answer any questions."
The employer will be ordered to cease and desist and to post a notice. Discipline
that is imposed for insisting on Weingarten rights will be overturned.
Discipline will not be overturned if the discipline was for reasons other than
insistence on Weingarten rights. Although information gained by the
Employer from the employee in a meeting during which a breach of Weingarten
rights occurred, may be excluded from a hearing on the matter.
An employee has NO right to the presence of a Union representative where:
- The meeting is merely for the purpose of conveying work instructions,
training, or communicating needed corrections in the employee's work techniques.
- The employee is assured by the employer prior to the interview that no
discipline or employment consequences can result from the interview.
- The employer has reached a final decision to impose certain discipline
on the employee prior to the interview, and the purpose of the interview is to
inform the employee of the discipline or to impose it.
- Any conversation or discussion about the previously determined
discipline which is initiated by the employee and without employer encouragement
or instigation after the employee is informed of the action.
Even in the above four (4) circumstances, the employee can still ask for
representation. Most employers will permit a representative to attend even when
not required to.
