EMPLOYEE'S RIGHT TO UNION REPRESENTATION
The right of employees to have union representation at investigatory interviews was announced by the U.S. Supreme Court in a 1975 case (NLRB vs. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689). These rights have become known as the Weingarten rights.
Employees have Weingarten rights only during investigatory interviews. An investigatory interview occurs when a supervisor questions an employee to obtain information which could be used as a basis for discipline or asks an employee to defend his or her conduct.
If an employee has a reasonable belief that discipline or other adverse consequences may result from what he or she says, the employee has the right to request union representation. Management is not required to inform the employee of his/her Weingarten rights; it is the employees responsibility to know and request.
When the employee makes the request for a union representative to be present management has three options:
(I) it can stop questioning until the representative arrives.
(2) it can call off the interview or,
(3) it can tell the employee that it will call off the interview unless the employee voluntarily gives up his/her rights to a union representative (an option the emplovee should always refuse.)
Employers will often assert that the only role of a union representative in an investigatory interview is to observe the discussion. The Supreme Court, however, clearly acknowledges a representative's right to assist and counsel workers during the interview.
Understanding Weingarten Rights Under Kansas PEERA
The (FOP Lodge 40 v. Wyandotte County Sheriff's Dept.) order 75-CAE-3-2006 & 75-CAE-10-2006 at pages 87 through 92 provides a discussion of Weingarten-type rights; summarizes the history of these investigatory interview rights under the Kansas PEERA; and indicates that PEERA provides for such rights even with the absence of the "...mutual aid and protection..." language in PEERA, which the U.S. Supreme Court concluded, was the basis for that right under the National Labor Relations Act. Now, while this PERB decision is just an administrative order, and the PERB decisions in the past have been mixed on this issue, it represents a new emphasis for representation rights during investigative interviews. When supported by a rational basis, the courts give the PERB "significant deference" in their interpretation of PEERA.