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During 1975, the United States Supreme Court issued its decision in NLRB v. Weingarten. This decision upheld a National Labor Relations Board determination that, under the National Labor Relations Act, an employee, upon request, had the right to union representation at an investigatory interview (meeting) which the employee reasonably believed might result in disciplinary action. In labor relations circles, this holding has become widely known as the "Weingarten Rule."
In firmly establishing this rule, it was the Court's view that such representation would be useful to both employees and employers. The court stated that a single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated or too ignorant to raise extenuating factors. The Court felt that a knowledgeable union representative could assist the employer by eliciting favorable facts and save the employer production time by getting to the bottom of the incident occasioning the interview. The Court stated that union representation should not await the employer's determination of misconduct, the imposition of discipline, and the filing of a grievance. At that stage, observed the Court, it becomes increasingly difficult for the employee to vindicate himself, the value of representation is correspondingly diminished, and the employer may then be more concerned with justifying its actions then examining them.
Congress incorporated the Weingarten principle in the Civil Service Reform Act of 1978, and Federal employees have enjoyed similar rights as private sector employees since January of 1979. Specifically, Section 7114(a)(2)(B) of Title 5, United States Code, provides that:
An exclusive representative of an appropriate unit in an agency will be given the opportunity to be represented at any examination of an employee in the unit by a representative of the agency in connection with an investigation if:
By now you may be asking what does all this mean and how will I know if I'm involved in a potential Weingarten situation. There are several points to consider: