The National Labor Relations Act (NLRA) gives employees the right to assistance from union representation during investigatory interviews. Although not explicit in the Act, the right was declared by the US Supreme Court in 1975 in NLRB vs. J. Weingarten, Inc. The rules the court announced are known as Weingarten rights.

Employees sometime confuse the Weingarten rules with the Miranda rules. However there is a big difference in the two rules. Under Miranda rules police who question criminal suspects MUST notify them of their right to remain silent and to have an attorney present during questioning. Under Weingarten employers have NO obligation to inform the employees of their rights to union representation. The employee must ask for union representation in such meetings

An investigatory interview occurs when:

Management questions an employee to obtain information and The employee has a reasonable belief that discipline or other adverse consequence may result from what he or she says.

Investigatory interviews relate to such subjects as:

• absenteeism
• accidents
• compliance with work rules
• damage to company property
• drinking
• drugs
• falsification of records
• lateness, poor attitude
• poor work performance
• sabotage
• slowdowns
• theft
• violations of safety rules

Not every discussion with management is an investigatory interview. For example, a supervisor may speak to an employee about the proper way to do a job. Even if the supervisor asks the employee questions, this is not an investigatory interview as the use or possibility of discipline is remote.

However a routine conversation changes character if a supervisor becomes dissatisfied with an employee’s answers and takes a hostile attitude. If this happens, the meeting becomes an investigatory interview and Weingarten rules apply.

When a supervisor calls an employee to the office to announce a warning or other discipline that has already been decided it is not an investigatory meeting since the supervisor is just informing the employee of a previously arrived-at decision. Such a meeting becomes an investigatory interview, however, if the supervisor asks questions that are related to the subject matter of the discipline.

• Serve as a witness to prevent supervisors from giving a false account of the conversation
• Object to intimidating tactics or confusing questions
• Advise an employee (when appropriate) against blindly denying everything, thereby giving the appearance of dishonesty and guilt.
• Help an employee to avoid making fatal admissions.
• Warn an employee against losing his or her temper.
• Raise extenuating factors.

The employee may request union representation before or during the interview. Remember the company does not have to offer union representation.

After the request, the employer must choose from three options.

Grant the request and delay questioning until the union representative arrives;

Deny the request and end the interview immediately; or

Give the employee a choice of:

A) Having the interview without representation (usually a very bad choice) or;
B) Ending the interview (best choice if no union rep. is coming)

If the employer denies the request for union representation and questions the employee, it commits an unfair labor practice and THEN the employee may refuse to answer.

Legal cases have established the following rights and obligations of the Union Rep. (steward).

• When the Rep. arrives, the supervisor must inform the employee and the Rep. of the subject matter of the interview: for example, the type of misconduct, which is being investigated. (The supervisor does not, however, have to reveal management’s entire case.)
• The Union Rep. can take the employee aside for a private pre-interview conference before the questioning begins.
• The Union Rep. can speak during the interview. (But, the rep. has no right to bargain over the purpose of the interview or to obstruct the interview.)
• The Union Rep. can advise the employee not to answer questions that are abusive, misleading, badgering, confusing or harassing.
• When the questioning ends, the Union Rep. can provide information to justify the employee’s conduct.

If called to a meeting with management, read the following statement to management
BEFORE the meeting starts!!

"If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions,
I respectfully request that my union representative, officer, or steward be present at this meeting.
Without representation present,....

I choose not to participate in the discussion at this time. "

"Garrity Rights"

The U.S. Supreme Court ruled in the Garrity vs. New Jersey case that if a public employee is ordered to answer questions by their employer under the threat of discipline about a potential criminal matter, they are not voluntarily waivering their rights against self-incrimination, but are making statements under duress. The police, to further investigation or gather evidence to be used in a criminal investigation, cannot use statements made under these conditions.

The State of NH further stipulates that a specific threat of termination is needed to compell an employee to answer and be covered under Garrity.

The Garrity rule is similar to Miranda rights for public employees. However the burden is on the employee to assert their Garrity rights. These rights can and should be asserted whenever an employee believes they are being investigated for possible criminal conduct.

Once an employee has asserted their Garrity Rights management must:

Give a direct order to answer the question;
Make the question specific, directly and narrowly related to the employee’s duty or fitness for duty;
Advise the employee that the answers will not and cannot be used against him/her in a criminal proceeding, nor the fruits of those proceedings; and
Allow union representation if the employee also asserts their Weingarten Rights and Right To Representation.

To ensure that your Garrity Rights are protected, you should ask the following questions in the State of New Hampshire:

If I refuse to talk, WILL I BE TERMINATED for the refusal?
Are my answers for internal and administrative purposes only and not to be used for criminal prosecution?

Should you be in a situation where Garrity Rights are needed, understand that the employer my not be familiar with Garrity Rights and their meaning. Don't be surprised or angry with this, it is just not that common. A simple explanation that you understand that the employer has a right to investigate the matter, but that you also have a Fifth Amendment right to be protected against self-incrimination. This should clear the way for meaningful dialog. These two rights can co-exist with the proper use of Garrity Rights. In many cases you may not even be aware of whatever crime or problem they are talking about, and even if you are aware of it, you also know you did not do it. Don't fall into the trap of talking too much just to make the employer happy. Be cautious, exercise your rights, and seek legal advice.

Mangement or Investigators may tell you things like: "Your answers or statements won't be used to prosecute you later". However, they don't have the final authority to determine who will be prosecuted for what. It is up to the County Attorney and they will make that determination. Please be cautious in your statements during interviews and stay alert concerning your rights.

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