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August 22, 2018

National Labor Relations Board Memorandum on Weingarten Rights

On August 15, 2018, the National Labor Relations Board (“the NLRB” or “the Board”) made public its memorandum concerning employees’ Weingarten rights. The memorandum makes it clear that an employee’s Weingarten rights are in effect once a union receives a majority of employee votes in a representation election—not after the union is certified. Employers who do not afford their employees the full use of these rights following a representation election are in violation of Section 8 of the National Labor Relations Act (the “Act”).


In NLRB v. J. Weingarten, Inc., the Supreme Court held that employees in a unionized workplace may, upon request, have a union representative present at investigatory meetings if an employee reasonably believes that the meeting may result in disciplinary action. 420 U.S. 251 (1975). The employer’s actual intentions are immaterial. However, Weingarten rights only apply to fact-finding interviews. In other words, Weingarten applies when an employer informs an employee of a potential disciplinary action (or causes an employee to make the reasonable inference that he may be subject to such action) and then seeks facts or evidence in support of that action. The employee facing discipline then has a right to union representation.

In the case at issue in the NLRB memorandum, an employee was summoned to the employer’s office. When the employee arrived, he promptly asked his employer if he had been summoned for a disciplinary meeting. The employer confirmed that the meeting involved potential discipline. At that point, the employee asked if he could have a representative attend the meeting. The employer told the employee that he was not entitled to a union representative because the NLRB had not yet certified the union. The employee asked that the meeting be postponed until a union representative was available to participate. The employer continued its investigation and reiterated that the employee was not entitled to a union representative until after the union became certified. Following the employer’s investigation, the employee was disciplined. The employer was found to have violated the Act by denying the employee his Weingarten rights.


Once a union has secured the support of the employer's workforce via a majority vote in a representative election, the employer must then approach employee disciplinary meetings, interviews, and hearings in accordance with the familiar Weingarten standard. Employers are advised that employees are entitled to the presence and/or full representation of a union delegate or another union member at any meeting, which the employee reasonably believes may lead to discipline, may be dispensed. Denying an employee this right constitutes an unfair labor practice under the Act.  Employers should provide all employees who are part of a union that has won a representation election the opportunity to have another union member or delegate present at all disciplinary interviews and meetings.


We are of course available to advise upon the proper protocols and procedures concerning any disciplinary meeting or interviews.