As a union employee, you have the right to union representation during questioning by your employer IF IT CAN LEAD TO DISCIPLINARY ACTION.

In 1972, an employee who was a member of the Retail Clerks Union was accused by her employer of not paying for some merchandise. When the employer tried to question her about the merchandise, she asked for a union representative to assist her. The employer refused and kept questioning. During questioning, it was made clear the employee was NOT GUILTY of the conduct which the employer was accusing her of. The employee did make statements about other conduct, though, which she thought was an accepted practice by most employees, and upon her admissions, the employer fired her. Note: she was not guilty of the original suspected misconduct.

The Union filed an unfair labor practice with the National Labor Relations Board, and the matter was ruled upon by the U.S. Supreme Court which determined that an employee has a right under federal labor laws to refuse to submit, without union representation, to an interview which he/she reasonably fears may result in discipline.

As with any rule, there are certain things that it covers, and there are certain things that it does not cover.

Your Rights: 

• Your right to union representation is not automatic; YOU MUST ASK FOR IT. Your employer is not under a duty to advise you of your rights.
• You have to request the union representation from the person who is doing the questioning, not from your immediate supervisor or your union representative. The questioner must be told that you do not want to proceed without union representation.
• You do not have the right to a union representative if the interview is only for the purpose of informing you of discipline already decided upon by the employer. However, in that case, you only need to listen, you do not have to answer any further questions by the employer. Further, you can ask for union representation under those circumstances, but the employer is not required to give you union representation.
• The rule does not apply to the normal everyday conversations between a supervisor and an employee, which pertains to performance of job duties and normal work performance.

The Employer's Rights:

Once you request union representation, your employer has three options.

1. They can grant your request and bring in a union representative.
2. They can discontinue the interview and proceed with the employer’s own investigation without your participation.
3. The employer can offer you the choice of proceeding without union representation

While an employee may waive the right to union representation, it is highly recommended that an employee not do so. Most of us feel that we are not guilty and that we are adequately able to represent ourselves. However, in the emotionally charged situation where you are being questioned by your employer, it is very possible that you will say things that the employer has no knowledge of which will either incriminate you or will cause the employer to undertake a new investigation regarding other conduct.

Remember in the Weingarten case the employee was innocent of the matter which the employer suspected but was still fired for other conduct which she openly admitted to the employer and which she had previously thought was acceptable conduct.