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The "Weingarten" Right


In accordance with 5 USC 7114(a)(2), the Weingarten Rule gives an exclusive bargaining unit the right to have a union representative present, at a bargaining unit employee's request, during investigative interviews that could lead to disciplinary action against the employee.

The term Weingarten is drawn from a private sector decision, NLRB v. J. Weingarten, Inc., 420 U.S. 252 (1975). This decision upheld a National Labor Relations Board determination that, under the National Labor Relations Act, an employee, upon request, had the right to union representation at an investigatory interview which the employee reasonably believed might result in disciplinary action. An employee may invoke the right to a union representative at any point during an investigative interview.

Should you have any questions on this provision of labor law, contact HRO or your local Union representative.

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How to Recognize Weingarten Situations

In order to qualify as a genuine Weingarten situation, 5 specific elements or conditions must be met.

  1. A bargaining unit employee is being or will be questioned,
  2. The person(s) doing the questioning are representatives of management,
  3. The nature of the discussion is or will be investigative,
  4. The employee being questioned could harbor a reasonable fear that the discussion will or could lead to disciplinary or adverse action, AND
  5. The employee(s) involved asks for the assistance of a union representative.

A meeting or discussion qualifies as a Weingarten discussion within the meaning of the labor relations statute only if all five elements are present.

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Steps In Handling Weingarten Situations

The first thing to do if an employee requests representation is to determine whether the situation meets all five of the criteria outlined above.  If it does not, you can decline to have a union representative present during the discussion. 

But if a discussion does meet all 5 of the criteria, you have the following options:

Option 1: Simply end the discussion: There is no requirement to continue an investigative discussion after an employee requests a union representative.  So if you want to end the discussion--either temporarily or permanently---feel free to do so.

Option 2:  Offer the employee the alternative of either continuing the discussion without a representative, or foregoing further discussion of the matter.  This is also perfectly legitimate, so long as you do not attempt to browbeat, intimidate or threaten the employee in any way.
  
Option 3:  Halt the questioning until the union representative arrives, then resume the discussion.  This, obviously, is also appropriate, particularly since the union representative is there to assist the employee in bringing out potentially helpful facts.

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Common Questions

  • Who qualifies as a "management representative"? 
    • All supervisors, managers, personnel specialists and agency security personnel engaged in investigative duties.
  • Are employees entitled to their representative of choice? 
    • No. During an investigation the Collective Bargaining Agreement limits the bargaining unit employee's choice of a union representative.
  • Do I have to inform an employee his/her right to representation before beginning questioning?  
    • Although not required by law, management must notify employees of this right, in accordance with the Collective Bargaining Agreement between NPS and NFFE Local 1690.
  • What if an employee is being questioned about possible wrongdoing but doesn’t request a union representative? 
    • In that case it is proper to commence the investigation unless the employee is in the bargaining unit under the NPS and NFFE local 1690 labor contract.
  • Are routine discussions or negative performance evaluations considered to be investigative?
    • No, since they do not involve an investigation.