Why is it Called the ‘Weingarten Right?” It all Comes Down to Chicken

September 28, 2020 11:31 AM , Updated October 8, 2020 1:24 PM
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Five chickens in a row on a concrete ledge

Most union representatives and management labor relations specialists and some managers and employees in the federal sector have heard of the Weingarten right. They basically know an employee has the right to request a union representative when the employee is being questioned in an examination in connection with an investigation where the employee reasonably believes the examination may result in disciplinary action against the employee. This right is provided for federal employees in the Federal Service Labor Management Relations Statute (Statute). 

Why is it called the Weingarten right and where did it come from? This right is all about chicken – read on see why that is the case.

History of the Weingarten Rights

The federal sector Weingarten rights derive from a U.S. Supreme Court Case: NLRB v. J. Weingarten, Inc. 420 U.S. 251 (1975) The facts of the Weingarten case as stated by the Supreme Court were as follows:

Respondent (Weingarten) operates a chain of some 100 retail stores with lunch counters at some, and so-called lobby food operations at others, dispensing food to take out or eat on the premises. Respondent’s sales personnel are represented for collective bargaining purposes by Retail Clerks Union, Local 455. Leura Collins, one of the sales personnel, worked at the lunch counter at Store No. 2 from 1961 to 1970, when she was transferred to the lobby operation at Store No. 98. Respondent maintains a company-wide security department staffed by “Loss Prevention Specialists” who work undercover in all stores to guard against loss from shoplifting and employee dishonesty. In June, 1972, “Specialist” Hardy, without the knowledge of the store manager, spent two days observing the lobby operation at Store No. 98 investigating a report that Collins was taking money from a cash register. When Hardy’s surveillance of Collins at work turned up no evidence to support the report, Hardy disclosed his presence to the store manager and reported that he could find nothing wrong. The store manager then told him that a fellow lobby employee of Collins had just reported that Collins had purchased a box of chicken that sold for $2.98, but had placed only $1 in the cash register. Collins was summoned to an interview with Specialist Hardy and the store manager, and Hardy questioned her. The Board found that, several times during the questioning, she asked the store manager to call the union shop steward or some other union representative to the interview, and that her requests were denied. Collins admitted that she had purchased some chicken, a loaf of bread, and some cake which she said she paid for and donated to her church for a church dinner. She explained that she purchased four pieces of chicken for which the price was $1, but that, because the lobby department was out of the small-size boxes in which such purchases were usually packaged, she put the chicken into the larger box normally used for packaging larger quantities. Specialist Hardy left the interview to check Collins’ explanation with the fellow employee who had reported Collins. This employee confirmed that the lobby department had run out of small boxes and also said that she did not know how many pieces of chicken Collins had put in the larger box. Specialist Hardy returned to the interview, told Collins that her explanation had checked out, that he was sorry if he had inconvenienced her, and that the matter was closed.

Collins thereupon burst into tears and blurted out that the only thing she had ever gotten from the store without paying for it was her free lunch. This revelation surprised the store manager and Hardy because, although free lunches had been provided at Store No. 2 when Collins worked at the lunch counter there, company policy was not to provide free lunches at stores operating lobby departments. In consequence, the store manager and Specialist Hardy closely interrogated Collins about violations of the policy in the lobby department at Store No. 98. Collins again asked that a shop steward be called to the interview, but the store manager denied her request. Based on her answers to his questions, Specialist Hardy prepared a written statement which included a computation that Collins owed the store approximately $160 for lunches. Collins refused to sign the statement. The Board found that Collins, as well as most, if not all, employees in the lobby department of Store No. 98, including the manager of that department, took lunch from the lobby without paying for it, apparently because no contrary policy was ever made known to them. Indeed, when company headquarters advised Specialist Hardy by telephone during the interview that headquarters itself was uncertain whether the policy against providing free lunches at lobby departments was in effect at Store No. 98, he terminated his interrogation of Collins. The store manager asked Collins not to discuss the matter with anyone because he considered it a private matter between her and the company, of no concern to others. Collins, however, reported the details of the interview fully to her shop steward and other union representatives, and this unfair labor practice proceeding resulted. 

In the 1975 Weingarten decision, the Supreme Court upheld a National Labor Relations Board (NLRB) decision that employees have a right to union representation at investigatory interviews. These rights have become known as the Weingarten Rights. 

They were not specific statutory rights found in the National Labor Relations Act. The Court held that in this case the NLRB’s interpretation of Section 7 was permissible because union representation at employer inquiries constitutes “concerted activity for mutual aid or protection” under the statute. While a particular inquiry might only have implications for one worker, each employee has an interest in the outcome as it establishes rules they will have to follow in the future. 

The Court further pointed out that having a representative present will help the employee who may be too “fearful or inarticulate” to accurately participate in the investigation as well as the employer by eliciting facts and helping find other sources for the investigation. The Court also pointed out that requiring a union representative at inquiries was consistent with actual labor practice as something already found in many workplaces.

During an investigatory interview, the Supreme Court ruled that the following rules apply: 

Rule 1

The employee must make a clear request for union representation before or during the interview. The employee cannot be punished for making this request.

Rule 2

After the employee makes the request, the employer must choose from among three options:

  • Grant the request and delay questioning until the union representative arrives and (prior to the interview continuing) the representative has a chance to consult privately with the employee;
  • Deny the request and end the interview immediately; or
  • Give the employee a clear choice between having the interview without representation, or ending the interview.

Rule 3

If the employer denies the request for union representation, and continues to ask questions, it commits an unfair labor practice and the employee has a right to refuse to answer. The employer may not discipline the employee for such a refusal.

Weingarten Rights and the Federal Sector

For the most part these are the same rules that apply in the federal sector. 

The Statute was enacted in 1978. The drafters of the Statute were obviously aware of the Weingarten decision which was issued 3 years earlier. They took the decision and made it into a statutory right in the federal sector found at 5 U.S.C. 7114 (a) (2) (B). 

Would federal employees have the Weingarten right if this decision had not been issued when it did? Probably not. The Statute is modeled to a degree on the National Law Relations Act (NLRA). The Weingarten Rights do not exist in the NLRA so would probably have not been thought of when the
Statute was being drafted. 

There are a lot of “ifs” in the facts that are interesting to wonder about:

  • What if the loss prevention specialist had already left the store having found no wrongdoing by Leura? 
  • What if an employee had not turned her in to the manager? 
  • What if they had stopped the interview after they found out they had no idea how much chicken she had taken and that there were only large boxes? 
  • What if she never went to her union rep after the interrogation? 

We will never know the answer to these what ifs.

The Weingarten case has resulted in innumerable Federal Sector Unfair Labor Practice cases and the establishment of an important right of employees. It all began when an employee was wrongfully suspected of stealing $1 worth of chicken.

© 2020 Joe Swerdzewski. All rights reserved. This article may not be reproduced without express written consent from Joe Swerdzewski.

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About the Author

Joe Swerdzewski, former General Counsel of the FLRA & owner of JSA LLC is the author of The Essential Guide to Federal Labor Relations, A Guide to Successful Federal Sector Collective Bargaining, etc. For more info on JSA’s services, email [email protected] or subscribe to JSA’s newsletter.

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