Examination of Employees (Weingarten Rights)

Another situation where the union is entitled to represent bargaining unit employees involves meetings with employees in connection with an investigation. This provision is often referred to as employees' "Weingarten" rights, based on a Supreme Court decision. The Federal Service Labor-Management Relations Statute establishes three conditions that must be met for a meeting to be considered a "Weingarten" meeting:

  1. One or more agency representatives are examining (questioning) a bargaining unit employee in connection with an investigation;
  2. The employee reasonably believes that the examination may result in disciplinary action against the employee; and
  3. The employee requests union representation.

Once all three conditions have been met, supervisors may generally not continue the examination without allowing the employee his or her requested representation. Specifically, the supervisor's options under these circumstances are:

  • Grant the request and notify the union that a meeting to examine a bargaining unit employee is going to take place and that the employee has requested union representation. If the union attends the meeting, it must be allowed to make relevant comments but cannot disrupt the meeting nor can it answer the questions posed to the employee;
  • Discontinue the interview and rely on evidence already available or information obtained from other sources; or
  • Offer the employee a clear choice to:
    1. continue the interview without representation, or
    2. have no interview.

It is recommended that if a manager choses to offer the employee the clear choice of continuing without a representative or to stop the interview, the employeeÂ’s choice should be put in writing.

  • "Weingarten" rights are not applicable when management issues a disciplinary action since management is not asking any questions. Additionally, the "Weingarten" right does not come into play when engaging in performance counseling as this does not concern disciplinary matters but, rather, performance issues.

Finally, management, usually the installation labor relations specialist, is responsible for annually notifying employees of their "Weingarten" rights. This can be accomplished by desk drops, notices in the installation paper, etc. Such notices should be sent using the means normally used by the installation to communicate with employees.

The "Weingarten" rights are not like "Miranda" rights in that management is not obligated to inform employees of their rights each time before questioning them. (However, it is important that the manager check the labor-management collective bargaining agreement since it may contain a requirement for individual notification prior to questioning employees where discipline may result.)

Failure to comply with the above requirements could result in a grievance or unfair labor practice.

Content last reviewed: 11/15/2016-DAH