"The National Labor Relations Act's protection of concerted activity includes the right to request assistance from union representatives during investigatory interviews."

The right to have a witness present during an investigatory interview extends to all employees union or non union. The United States Supreme Court declared this in 1975 in the National Labor Relations Board vs. J. Weingarten case. The rights announced by the Court have become known as Weingarten rights, and they extend to all workers covered under the National Labor Relations Act (different standards may apply to workers not covered under the NLRA). Unions educate their members about the advantages of having a steward present at an investigatory interview.

These include the ability of the steward, delegate, or employee selected representative to:

·        Serve as a witness to prevent a supervisor from giving a false account of the conversation Object to intimidation tactics or confusing questions.

• Help an employee to avoid making fatal admissions.
• Advise an employee when appropriate against denying everything thereby giving the appearance of dishonesty and guilt.
• Warn an employee against losing their temper.
• Discourage an employee from informing on others; and
• Raise extenuating factors.

An investigatory interview occurs when:

• Management questions an employee to obtain information; or
• The employee has a reasonable belief that discipline or other adverse consequences may result.

Not every discussion with management is an investigatory interview. For instance, a supervisor may speak with an employee about the proper way to do a job. The supervisor may even ask questions. But because the likelihood of discipline is remote, the conversation is not an investigatory interview.

A conversation can change its character, however. If the supervisor’s attitude becomes hostile and the meeting turns into an investigatory interview, the employee is entitled to representation.

When a supervisor calls an employee to the office to announce a warning or other discipline, is this an investigatory interview? The NLRB says no, because the supervisor is merely informing the employee of an already-made decision. Unless the supervisor asks questions about the employee’s conduct, the meeting is not investigatory.

Under the Supreme Court’s decision, the following rules apply to investigatory interviews:

• The employee can request union representation before or at any time during the interview.
• When an employee asks for representation, the employer must choose from among three options:
• Grant the request and delay questioning until the union representatives arrives,

*Deny the request and end the interview immediately, or

*Give the employee a choice of (a) having the interview without representation or

(b) ending the interview.

Employers sometimes assert that the only function of a steward at an investigatory interview is to observe the discussion in other words - to be a silent witness. That is incorrect! When the steward arrives at the meeting:

• The supervisor or manager must inform the steward of the subject matter of the interview: in other words, the type of misconduct being investigated;
• The steward must be allowed to have a private meeting with the employee before question begins;
• The steward can speak during the interview, but cannot insist that the interview be ended;
• The steward can object to a confusing question and can request that the question be clarified so that the employee understands what is being asked;
• The steward can advise the employee not to answer questions that are abusive, misleading, badgering or harassing;
• When the questioning ends, the steward can provide information to justify the employee’s conduct.

Note:   You have the right not to engage in compromising conversations with your employer, even if the employer claims it is for your benefit or your coworker's benefit.