Knowing When to Keep Quiet: Weingarten and the Limitations on Representative Participation

Source: Jodie Meade Michalski, Hofstra Labor & Employment Law Journal, Volume 26, No. 1, Fall 2008

The rules regulating investigatory interviews in the labor context require a delicate balance between the employee’s need for assistance and council and the employer’s need to maintain safety and control in the workplace. The system for maintaining this balance was first established by the National Labor Relations Board (“Board”) in Quality Manufacturing Co. and later adopted by the Supreme Court in NLRB v. J. Weingarten, Inc. In Weingarten, the Court held that while section of the National Labor Relations Act (“NLRA”) entitles an employee to union representation during an investigatory interview, such representation is limited by the employer’s right to conduct the interview. The Court’s analytical framework, which requires the union to protect the employee’s rights without interfering with legitimate employer prerogatives or turning the interview into an adversary contest, has resulted in over thirty years of conflicting case law as the Board, arbitrators, and courts have attempted to address the specific questions raised by the Weingarten decision. However, one issue remains curiously unresolved: to what extent may a union representative participate in a Weingarten interview?

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