By Richard Manifold, Human Relations Director, The IPWU Dispatch
Reprint from the postal union paper COMMUNICATOR, May 2021
Federal labor law gives each employee the right to representation during any investigatory interview which the employee reasonably believes may lead to discipline. Tis right originated in NLRB v. J. Weingarten, U.S. Supreme Court 1975, and is commonly called the "Weingarten rule" or "Weingarten rights". The Weingarten rule only applies to an investigatory interview when management is searching for facts relevantd to determining an employee's guilt or decidingwhether to impose discipline. Weingarten rights do not apply when management issues a disciplinary action to an employee, for example handing an employee a letter of warning.
Weingarten representation righs apply when an employee reasonably believes that discipline could result from the interview. Whether or not an employee's belief is reasonable depends on the circumstatnces of each case.
The steward cannot exercise Weingarten rights on the employee"s behalf. Unlike Miranda rights, which involve a criminal investigation, management is not required to inform the employee of the Weingarten rule.
The Weimgarten rule includes the right to a pre-interview consultation with a steward. Federal courts have extended this right to pre-meeting consultation to cover Inspection Service interrogations. (Postal Service v. NLRB, D.C. Cir.1992).
The employee has the right to a steward assistance, not just a silent presence, during an interview covered by the Weingarten rule. An employee's Weingarten rights are violated when the union representative is not allowed to speak or is restricted to a role of a passive observer.
Although ELM, Section 665.3 requires all postal employees to cooperate suring investigations, an employee with Weingarten rights is entitled to have a steward present before answering questions. The employee may respond that he or she will answer questions once a steward is provided.