Disciplinary and investigatory interviews are an unavoidable part of managing a public workforce. When a represented employee is questioned in a setting that could lead to discipline or involving highly unusual circumstances that may significantly impact the employer-employee relationship, the employee may invoke the right to union representation. The right is grounded in both PERB precedent and federal doctrine. Once a request for representation is made, employers must proceed cautiously, as missteps can lead to unfair practice charges and remedies that undo discipline and require corrective action.
How Were Weingarten Rights Established?
“Weingarten rights” trace back to NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251. In this case, J. Weingarten, Inc. was a chain of retail stores with lunch counters. Sales personnel were represented by the Retail Clerks Union, Local 455. Leura Collins was one of the sales personnel who worked at the lunch counter and lobby. An employee reported that Collins did not pay full price for food she purchased from the counter. Collins was summoned to an interview with an undercover security officer and the store manager. 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 her requests were denied. During the interview, Collins 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. The store manager believed that free lunches were not permitted by company policy. Collins again asked that a shop steward be called to the interview, but the store manager denied her request. An intense interrogation followed. Based on her answers to his questions, Collins was told to sign a written statement which included a computation that Collins owed the store approximately $160 for lunches. Collins refused to sign the statement. The store manager then discovered that most employees in the store, including the manager of that department, took lunch from the lobby without paying for it, and headquarters advised that it was uncertain if there was any policy against providing free lunches to employees. Collins was told she could return to work. The store manager asked Collins not to discuss the matter with anyone. Collins reported the details of the interview to her shop steward, resulting in an unfair labor practice finding under the National Labor Relations Act (NLRA). The case was eventually brought to the U.S. Supreme Court, which held that employees in unionized workplaces have the right to request representation “at investigatory interviews which the employee reasonably believes may result in disciplinary action.”
When Do Weingarten Rights Apply?
Under California labor relations statutes, the Public Employment Relations Board (PERB) has long applied the Weingarten principle to local public agencies, enforcing representation rights whenever an interview is investigatory in nature and discipline is reasonably anticipated by the employee. PERB applies a three-part test, parallel to the test under the National Labor Relations Act (NLRA):
- The employer engages in investigatory questioning (it does not have to be a formal investigatory interview);
- The employee has a reasonable belief that discipline may result from the questioning; and
- The employee asks for a union representative.
What is an “Investigatory Interview”?
An investigatory interview is a meeting where the employer questions an employee to obtain facts, explanations, or admissions, and the employee reasonably believes discipline may result. The label given to the meeting is not necessarily relevant.
Is the Employer Required to Inform the Employee About Their Weingarten Rights?
No. Weingarten rights are triggered only if the employee affirmatively requests representation. Employers are not required to advise employees of these rights in advance. However, offering an employee the right to a representative in writing in advance of an investigatory interview makes it difficult for an employee to later assert they were denied representation.
What Happens If an Employer Denies Representation After it is Requested?
For California public employers, violations may result in an unfair practice charge before PERB, with remedies such as cease-and-desist orders, posting requirements, and other appropriate relief.
What Types of Meetings Do Not Invoke Weingarten Rights?
- Meetings intended to give instructions, provide training, or give feedback regarding work performance.[1]
- Meetings held to announce or issue discipline already decided.[2]
- Routine performance evaluation meetings. However, PERB has established that employees have a right to union representation during performance evaluation meetings if they reasonably believe the meeting could lead to discipline.[3]
Who Can Serve as a Representative?
Typically, a representative is a union steward or union representative associated with the employee’s bargaining unit. The employee can choose a specific representative if representation is not subject to unreasonable delays to secure a particular individual. Reasonableness depends on the circumstances.
Can the Employee Choose Someone Other Than the Union-Appointed Representative?
An employee may choose their own representative, who may be a representative of the union or a fellow employee. Employers are required to honor that request, so long as that choice does not unduly interfere with the employer’s ability to conduct its investigation. Employees may not request a non-employee representative unless that individual is an officer or business agent of the employee’s union. For example, an employee may not request a private attorney or a family member as their Weingarten representative if that individual has no affiliation with the employee’s union.
Can the Employer Request a Different Representative?
The employer is not entitled to choose the representative. However, there may be instances where the employer has legitimate concerns about a representative, such as when the employee’s chosen representative is a witness or even a complainant in the investigation. Employers who have concerns about witness integrity should proceed cautiously.
If the Employee’s Chosen Representative Is Unavailable to Appear in Person, Can the Employer Require the Representative to Attend by Phone or Video Conference?
Possibly, depending on circumstances, policies, and MOUs. However, forcing remote participation without justification—especially when in-person is feasible—can undermine meaningful representation.
What is the Role of the Union Representative?
The representative may assist and advise the employee and ask clarifying questions. The representative may not disrupt or obstruct the interview or answer questions on the employee’s behalf. The employer may require that the employee answer questions directly. The representative may advise, clarify, and consult, but not substitute their answers.
Can the Employer Insist that the Union Representative Remain Silent During the Meeting?
No. The union representative is allowed to speak and to provide information and suggestions during the meeting. However, the employer retains the right to determine the content and conduct of the meeting.
Are Employees Entitled to Information in Advance of the Interview Regarding the Subject of the Meeting?
PERB has held that an employee and their representative are not entitled to view a written complaint in advance of an investigatory interview. However, a union and the represented employee have a right to sufficient information about alleged wrongdoing in advance of an investigatory interview to allow for consultation and meaningful representation.[4]
Is the Union Representative Entitled to Meet Privately with the Employee Under Investigation Before the Questioning Begins?
Yes. Meaningful representation includes pre-interview consultation with the union representative.
If the Employee Asks for Representation in the Middle of the Investigatory Meeting, is the Employer Required to Stop Questioning Until the Representative is Present?
Yes. Once a valid request is made, the employer must stop questioning immediately and delay further questioning until the representative is present. The employer may not deny the request and continue questioning.
What if I Do Not Intend to Discipline the Employee, but the Employee Asks for Representation?
Representational rights can arise even absent traditional discipline. While classic investigatory interviews that can lead to discipline are the most common trigger, PERB also recognizes representation rights in “highly unusual circumstances”—situations where meetings may significantly impact an employee’s work conditions or relationship with the employer.
Do Weingarten Rights Apply to Probationary Employees?”
Yes. If the probationary employee is represented by a union, Weingarten rights still apply, even if the employee has limited appeal rights.
Can Weingarten Rights Apply During an Informal Conversation?
Yes. Informal settings do not eliminate Weingarten rights. If a supervisor starts asking fact-gathering questions and the employee reasonably believes discipline could result, the setting is irrelevant.
Are There Any Other Times When an Employee Is Entitled to Union Representation?
PERB has held that an employee’s right to representation under California law is considerably broader than federal Weingarten representation rights.[5] PERB has upheld the right to representation in non-investigatory situations to protect employees at meetings that may significantly impact the employer-employee relationship, such as an interactive process meeting about accommodating an employee’s disability or a meeting about job audit forms that could lead to a reclassification or salary adjustment.[6] PERB has upheld the right to representation in “highly unusual circumstances” including:
- Compelled Interviews: Meetings where employees are ordered to participate, such as by subpoena or directive from high-level investigators (e.g., Office of the Inspector General).[7]
- Intrusive Personal Searches: Invasively searching an employee’s person, including unclothed body searches, grants an immediate right to representation.[8]
- Demand for Written Statements: Where an employee is directed to memorialize in writing their previous responses to the earlier questioning. PERB commented that the right to representation applies regardless of whether the employer is seeking additional information or merely attempting to confirm information the employee has already provided.[9]
In addition, the Public Safety Officers Procedural Bill of Rights Act (POBR) and Firefighters Procedural Bill of Rights Act (FBOR) provide further procedural safeguards and rights regarding representation and disclosure of allegations which must be followed when interviewing sworn employees to avoid invalidated disciplinary actions.
Do Weingarten Rights Apply to Unrepresented Employees?
While other statutes may confer a right to representation, Weingarten rights are grounded in the employee’s right to participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations and the corresponding right of employee organizations to represent their members in their employment relations with public employer.[10]
Conclusion
PERB has shown that representation rights are not limited to narrow, classic investigatory interviews. They also apply when a meeting could meaningfully affect the employer–employee relationship. PERB decisions continue to refine Weingarten rights under the California public sector labor relations laws, with a clear trend toward ensuring meaningful representation through adequate information and opportunity to confer. Employers who anticipate these issues, provide context in advance, and manage investigatory interviews methodically will be best positioned to avoid unfair practice charges and preserve the integrity of disciplinary outcomes.
[1] State of California (Board of Equalization) (2012) PERB Dec. No. 2237-S.
[2] City & County of San Francisco (2011) PERB Dec. No. 2222M.
[3] Redwoods Community College District v. PERB (1984) 159 Cal.App.3d 617; State of California (California Correctional Health Care Services) (2015) PERB Dec. No. 2465-S.
[4] Contra Costa Community College District (2019) PERB Decision No. 2652.
[5] Capistrano Unified School District (2015) PERB Decision No. 2440-E; Sonoma County Superior Court (2015) PERB Decision No. 2409-C; Regents of the University of California (1984) PERB Decision No. 403-H, p. 10.
[6] Sonoma County Superior Court (2015) PERB Decision No. 2409C; Capistrano Unified School District (2015) PERB Decision No. 2440-E.
[7] State Of California (Office of the Inspector General) (2019) PERB Decision No. 2660-S.
[8] State of California (Department of Corrections and Rehabilitation) (2018) PERB Decision No. 2598-S.
[9] San Bernardino Community College District (2018) PERB Decision No. 2599-E.
[10] State of California (Department of Consumer Affairs) (2005) PERB Decision No 1762S.