Note: The following article by FAC Chair Michael Friedman is reprinted from the September 2001 FAC Sheet in updated form as a reminder to all faculty members about their rights under federal law.
In NLRB vs. Weingarten (1975), the US Supreme Court gave employees the right to be accompanied by a union representative during an investigatory interview. Such an interview occurs when an employer questions an employee to obtain information, and the employee has a reasonable expectation that discipline or other adverse consequences may result from what he or she says. On our campus, such an interview might concern subjects like poor job performance, discrimination, harassment, student complaints, absenteeism, theft, drugs, falsification of records, or damage to university property.
Not every discussion that you might have with an administrator is an investigatory interview. For example, a dean might call you in to discuss strategies for improving your scholarly record, a topic that probably will not lead to disciplinary action. However, if an administrator becomes dissatisfied with your answers and takes an adversarial attitude, the meeting becomes an investigatory interview and Weingarten rules apply.
Unlike police officers, who must inform criminal suspects of their Miranda rights, administrators are not obliged to notify you of your Weingarten rights. You must make your own request for union representation before or during the interview. Administrators may choose to grant your request and delay questioning until a union representative arrives, or they may deny your request and end the interview immediately. Alternately, an administrator may give you the choice of continuing the interview without union representation (usually a bad move) or ending the interview (your best choice if no union officer is immediately available). If an administrator denies your request for union representation and proceeds to question you, he or she has committed an unfair labor practice, which gives you the right to refuse to answer any further questions.
Having a union officer present can help you in many ways. The union officer can serve as a witness to prevent either side from giving a misleading account of the conversation. The union officer can also object to intimidating or confusing questions and raise extenuating circumstances. If you appear to be losing your temper, the union officer can help you to avoid making reckless statements or damaging admissions. And finally, the union officer can, when appropriate, advise you against blindly denying all charges, which may give the appearance of dishonesty and guilt.
According to legal precedent, a union officer has the right to counsel you during an investigatory interview and to assist you in presenting the facts of the case. When the union officer arrives, the supervisor must inform you both of the subject matter of the interview, such as the type of misconduct that is being investigated. The union officer then may take you aside for a private conference before the questioning begins. The union officer may also speak during the interview, but he or she has no right to bargain over the purpose of the interview or to obstruct it. At the end of the questioning, the union officer may provide information to help you to justify your conduct.
If you are summoned to meet with an administrator, and you have a reasonable expectation that disciplinary action might result, consider making the following statement before the meeting starts: “If this discussion could affect my working conditions or lead to my being disciplined, I respectfully request that a union officer be present at this meeting. Without representation present, I choose not to participate in this discussion.”
Source: Hessenauer, Donna. “Weingarten Rights.” Communication Workers of America. 3 Aug. 2001 http://www.cwa3603.net/Weingarten.htm.