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Unfair Labor Practices
Sec. 8. [Sec. 158.] (a) [Unfair labor practices by employer] It
shall be an unfair labor practice for an employer--
(1) to interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in section 7 [section 157 of this title];
(2) to dominate or interfere with the formation or administration of
any labor organization or contribute financial or other support to it:
Provided, That subject to rules and regulations made and published by
the Board pursuant to section 6 [section 156 of this title], an
employer shall not be prohibited from permitting employees to confer
with him during working hours without loss of time or pay;
(3) by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage
membership in any labor organization: Provided, That nothing in this
Act [subchapter], or in any other statute of the United States, shall
preclude an employer from making an agreement with a labor
organization (not established, maintained, or assisted by any action
defined in section 8(a) of this Act [in this subsection] as an unfair
labor practice) to require as a condition of employment membership
therein on or after the thirtieth day following the beginning of such
employment or the effective date of such agreement, whichever is the
later, (i) if such labor organization is the representative of the
employees as provided in section 9(a) [section 159(a) of this title],
in the appropriate collective-bargaining unit covered by such
agreement when made, and (ii) unless following an election held as
provided in section 9(e) [section 159(e) of this title] within one
year preceding the effective date of such agreement, the Board shall
have certified that at least a majority of the employees eligible to
vote in such election have voted to rescind the authority of such
labor organization to make such an agreement: Provided further, That
no employer shall justify any discrimination against an employee for
nonmembership in a labor organization (A) if he has reasonable grounds
for believing that such membership was not available to the employee
on the same terms and conditions generally applicable to other
members, or (B) if he has reasonable grounds for believing that
membership was denied or terminated for reasons other than the failure
of the employee to tender the periodic dues and the initiation fees
uniformly required as a condition of acquiring or retaining
membership;
(4) to discharge or otherwise discriminate against an employee
because he has filed charges or given testimony under this Act
[subchapter];
(5) to refuse to bargain collectively with the representatives of
his employees, subject to the provisions of section 9(a) [section
159(a) of this title].
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Weingarten Rights - An Overview By James Carney,International Vice President
The rights of unionized employees to have present a union representative during investigatory interviews were announced by the U.S. Supreme Court in a 1975 case (NLRB vs. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689). These rights have become known as the Weingarten Rights.
Employees have Weingarten rights only 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. Management is not required to inform the employee of his/her Weingarten rights; it is the employee’s responsibility to know and request.
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.)
Employers will often assert that the only role of a union representative in an investigatory interview is to observe the discussion. The Supreme Court, however, clearly acknowledges a representative's right to assist and counsel workers during the interview.
The Supreme Court has also ruled that 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 the 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 can not 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.
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