Weingarten rights are named after a landmark 1975 U.S. Supreme Court case. Through court decisions and legislation, this protection now covers almost all-private sector and federal employees and many state and local government employees in the U.S. The Pennsylvania courts have adopted Weingarten rights for all public employees and even some private sector employees without union contracts. Under Weingarten, in order for a worker to have the legal right to a union representative during a meeting with management, all of the following conditions must be met:
The meeting is an investigatory interview. This means that the employee is expected to answer questions in connection with an inquiry into possible wrong doing or unacceptable behavior. Weingarten rights do not cover meetings where the communication is one-way; that is, when the purpose is merely to convey information to an employee of a decision already made regarding discipline. Keep in mind also that discussion of job performance does not automatically include the right to representation. That right exists only if the meeting also involves giving answers to questions that may then lead to a disciplinary action or when an unsatisfactory performance review may lead to discipline or termination.
Disciplinary actions may result from the meeting. The legal standard here is that a disciplinary action – of any severity – is one possible result of the meeting. Since what matters is whether disciplinary action may result, it legally makes no difference that the supervisor who calls the employee in may not be intending to take disciplinary action.
The employee believes disciplinary action may be taken. The law generally requires only that the employee has a reasonable belief that he or she may be disciplined. Whether that belief is reasonable or not is a judgment call for an arbitrator, the PLRB, or the courts to decide and will be determined based on all the circumstances surrounding the meeting: Has the supervisor previously raised the possibility of discipline? Have other employees been disciplined for what this individual is accused of? Is this employee working under the threat of a performance-warning letter? The employer cannot make that judgment call on whether the employee’s belief is reasonable.
A request is made for representation. Weingarten rights differ in one crucial way from the Miranda rights you see on television; unlike the police, employers have no legal obligation to advise workers of their legal rights before questioning begins, unless your contract requires them to do so. Notice requirements can be bargained, but absent such contract language, employees need to know that they have these rights and must exercise them in order for them to have union representation. (Adapted from Association Rep Manual 2009)