In 1975, the United States Supreme Court held in NLRB vs. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689, that employees covered by a collective bargaining agreement have a right to be represented during investigatory interviews. An investigatory interview occurs when a supervisor 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. If an employee has a reasonable belief that discipline or other adverse consequences may result from what he or she says, the employee has the right to request union representation.
When the employee makes the request for a union representative to be present, management has three options: (1) Stop questioning until the representative arrives; (2) Call off the interview; or (3) Tell the employee the interview will be called off unless the employee voluntarily gives up his/her right to a union representative (an option the employee should always refuse).
Once an employee asks for union representation, any attempt by management to continue asking questions before a union representative arrives is illegal. The Supreme Court of the United States further held that a representative has a right to assist and counsel workers during the interview and, during an investigatory interview, management must inform the union representative of the subject of the interrogation. The representative must also be allowed to speak privately with the employee before the interview.
During questioning, the representative can interrupt to clarify a question or to object to confusing or intimidating tactics. While the interview is in progress, the representative cannot tell the employee what to say, but he may advise them on how to answer a question. At the end of the interview, the union representative can add information to support the employee’s case.