“Weingarten rights” give federal employees the right to union representation in investigations by their agency where “the employee reasonably believes the investigation will result in disciplinary action” NLRB v. J. Weingarten, Inc., 420 U.S. 251, 257 (1975). Investigations don’t have to be formally labeled with the word “investigation”, practically, the investigations are often meetings with the employee’s supervisor.
Weingarten rights are not automatic however and “the right arises only in situations where the employee requests representation.” Weingarten, 420 U.S. at 257. But what does it mean to ask for your Weingarten rights? Do employees have to say the magic words “Weingarten rights” to the agency? Is it enough to ask for union representation without saying “Weingarten?” Do you have to do it at the meeting itself or before the meeting starts?
Most federal employees would not be surprised to learn that agencies interpret Weingarten rights as narrowly as they can get away with but a new legal decision just made it harder for agencies to deny employees their Weingarten rights
In a new National Labor Relations Board case, Circus Circus Casinos, Inc. d/b/a Circus Circus Las Vegas andMichael Schramm, a union employee told his managers that he had tried multiple times to get the union to attend the meeting with him, but no one from showed up at the investigation meeting. Even though he did not tell his managers specifically that he was requesting Weingarten rights and did not tell them before or during at the meeting that he wanted a union representative there with him; the National Labor Relations Board held that telling his managers he had tried multiple times to contact the union about attending the meeting counted as “requesting representation” under the Weingarten case. Even better, the Board reiterated that Weingarten rights are meant to be interpreted liberally and this ruling may help extend Weingarten rights protection to all sorts of other ambiguous situations.
The National Labor Relations Board only governs private sector employers, but now that the Board has ruled this way, there is a good chance the Federal Labor Relations Authority will follow suit. So what does this decision mean practically?
If you are a federal employee under investigation there is no reason to rely on the liberal interpretation taken by the Board – by all means, use magic words like “I want a union representative and insist on my Weingarten rights.” There is rarely a reason not to be as clear as possible and the best course is typically to tell your agency you want your Weingarten rights.
But what if you are an employee who may not have know much about Weingarten rights before reading this article, or a union rep trying to help an employee who was taken advantage of by their agency? Then this new ruling may provide some tools to help. If you are stuck in a grey area where you or one of your union members was denied your Weingarten rights after trying to get union representation at a meeting give us a call, we may be able to help.