Weingarten Rights do not apply to railroad employees

Employees covered by the National Labor Relations Act (NLRA) have a right to have a union representative or co-worker present during an investigatory interview with management when the employee reasonably believes that the interview might result in disciplinary action. This is generally described as the employee’s “Weingarten Rights,” referring to a case decided by the Supreme Court where it was held that denial of a request to have a representative present during such an interview was an unfair labor practice. NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). Since railroad employees are covered by the Railway Labor Act, not the NLRA, do they have the same right to demand that a representative accompany them to an interview conducted by a management official?

Unfortunately, the answer is no. The reason for the difference can be found in the text of the statutes. Section 7 of the NLRA gives non-railroad employees the right “to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…” 29 U.S.C. §157. The Supreme Court held in Weingarten that the request for a representative during an interview with management is considered “concerted activit[y] for…mutual aid or protection.” To put it simply, the right to have a union representative present while you are being interrogated by your supervisor protects not only you, but the entire group of people represented by the union. The language quoted prohibits a company from interfering with that right.

The language of the Railway Labor Act is more limited, however. Section 2, Fourth of the RLA provides that, “[e]mployees shall have the right to organize and bargain collectively through representatives of their own choosing…No [railroad], its officers or agents, shall deny or in any way question the right of its employees to join, organize, or assist in organizing the [union] of their choice, and it shall be unlawful for any [railroad] to interfere in any way with the organization of its employees…” 45 U.S.C. §152 Fourth. Notably missing from this section is a phrase comparable to “other mutual aid or protection.” The RLA’s focus is on protecting employees’ rights to select and form a union, and collectively bargain with the railroad through that union. The right to have a representative present during an interview with management is not covered by those rights.

Although such a right is not legally protected, railroad employees should always show up at investigatory interviews with a union representative or co-employee. A railroad official will be less likely to try to harass or intimidate if a witness is present, and he or she likely won’t know whether Weingarten rights apply or not. If the railroad official insists on speaking to the employee alone, however, the employee should not be insubordinate or refuse to cooperate. Get good advice before the interview occurs with your union representative, and if necessary, handle the interview alone.

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