Weingarten Rights
Right to Union Representation for Bargaining Unit Employees of the US Border Patrol
In 1975, the U.S. Supreme Court ruled that Federal employees have the right to union representation at investigative interviews. NLRB vs. Weingarten, Inc. 420 U.S. 251. These rights have become known as the Weingarten rights.
The U.S. Supreme Court held that, under the National Labor Relations Act (NLRA), employees have the right to union representation at an interview when the employee reasonably believes his or her statement may result in disciplinary action.[1]
An interview occurs when the Service questions an employee to obtain information which could be used as a basis for discipline or asks an employee to defend his or her conduct. This interview not only applies to verbal communication but also to any kind of self-documenting that may be requested by the Service that could be self incriminating (i.e. memorandums.)
If an employee has a reasonable belief [2] that discipline or other adverse consequences may result from the discussion, the employee has the right to request union representation. Management is not required to request union representation under Weingarten rights for the employee; it is the employee’s responsibility to request it.
Protection under Weingarten is afforded when two conditions are met:[3]
[1] Section 7, 29 U.S.C. 157 of the NLRA Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3)
[2] 195 N. L. R. B. 197, 198 n. 3. In NLRB v. Gissel Packing Co
[3] Further supported by the Collective Bargaining Agreement between the Immigration and Naturalization Service and the National Border Patrol Council, Article 31, Section B (1)
1. An employee reasonably believes that disciplinary action may be the result of his/her examination.
2. The employee requests representation.
Both conditions have to be met for the employee to invoke his Weingarten rights.
What are some situations where an employee could invoke his/her Weingarten rights?
1. A meeting with one of the Service’s representative in an administrative investigative interview. Who are our employer’s representatives?
a. Office of Internal Affairs (Administrative cases)
b. Office of Professional Responsibility (Administrative cases)
c. Office of Inspector General (Administrative cases)
d. Management Inquiry
2. When a memorandum is requested by the Service to explain the employee’s actions or what he/she witnessed.
3. A meeting with management where an employee is expected to defend his/her conduct or furnish any kind of information that could lead to future discipline.
b. When the employee makes the request for a union representative to be present, management has three options:
1. It can stop questioning until the representative arrives.
2. It can call off the interview or,
3. It can tell the employee that it will call off the interview unless the employee voluntarily gives up his/her rights to a union representative (an option the employee should always refuse.)
As always, if you have any questions regarding your rights, please contact one of your station’s union stewards.