USPS-APWU Joint Contract Interpretation Manual November 2005 Article 17, page 5
Federal labor law gives each employee the right to representation during any investigatory interview which the employee reasonably believes may lead to discipline. This 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 relevant to determining an employee’s guilt or deciding whether 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 rights apply where an employee reasonably believes that discipline could result from the investigatory interview. Whether or not an employee’s belief is “reasonable” depends on the circumstances 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 Weingarten rule includes the right to a pre-interview consultation with a steward. Federal Courts have extended this right to pre-meeting consultations to cover Inspection Service interrogations. (Postal Service v. NLRB, D.C. Cir. 1992).
The employee has the right to a steward’s 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 the role of a passive observer.
Although ELM, Section 665.3 requires all postal employees to cooperate during 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.