Do I go ahead and get the steward there? Different perspectives on an age-old topic

The US Supreme Court’s Weingarten decision (1975) established that unionized employees have the right to representation by a steward if they reasonably believe that a management interview might result in discipline.

But many employers go well beyond the Court’s requirements and provide a steward in almost any meeting between management and unionized employees – even those where there will be no interview and no reasonable expectation that discipline may result.

So what are the best Weingarten practices from a management perspective? 

Is it best to take a liberal approach and have a steward present and ready to go for any kind of meeting? 

Or conversely, should steward participation be limited by the strict language of Weingarten to cases where there is an interview, the employee requests representation, and the employee could reasonably fear discipline? 

The strict-construction, Weingarten-based position

I recently visited with a very experienced, successful labor relations manager for a large company who advises her managers to stick to Weingarten’s requirements:  1) There must be an interview requesting information from the unionized employee, and 2) The employee has a reasonable belief that the conversation could lead to discipline, and 3) The employee requests representation. 

Her reasons for this approach make a lot of sense.  The right to representation is the employee’s right to exercise – not management’s right to impose – and some employees do not want a representative present.  The employee might be embarrassed to have a steward there.  Or maybe the employee has a poor relationship with available stewards or union leadership, or fears that a steward might just make matters worse. 

The employee may want a particular steward, and if that is not disruptive to the business then the employee has the right under Weingarten and subsequent case law to a representative of his own choosing. 

Just as the skills and approaches of lawyers vary widely, so do those of stewards.  The employee may know that his shop steward has been in the role for only a month, has no training, and is reluctant to speak up.  In contrast, another steward is experienced, well-trained, and has a reputation for effective representation.  So, if management lines up a steward to attend an interview in advance, it may be inadvertently interfering with the employee’s right to choose a representative.

There will be many informational exchanges between management and employees that do not create a reasonable belief that discipline might result. 

For example, a unionized employee who is interviewed solely as a witness to an event should not fear discipline and a steward’s assistance is unnecessary.  In fact, the presence of a steward may lead the employee to be less candid or forthcoming than she would be otherwise, thus hindering an investigation.

Coaching and counseling sessions between supervisors and employees are meant to clarify performance expectations and help employees improve – not to result in discipline.  A steward’s presence changes the dynamics of the exchange from a pep-talk and improvement session to “union business,” where a manager’s best intentions to help the employee may be misinterpreted as a prelude to discipline. 

And even in many larger companies, small satellite facilities with few employees may not have stewards.  In those cases, it can be time-consuming and disruptive to the business to bring in a steward from long distance – so steward representation is best limited to Weingarten-required situations.

Of course, there are some risks in this “strict Weingarten” approach.

Under Weingarten, a private-sector company is under no obligation to tell the employee that a discussion could lead to discipline.  Contrast this with a criminal investigation’s “Miranda warnings,” which require law enforcement to announce in advance the right to remain silent and that anything said could be used in a court of law. 

If management does not advise the employee of his Weingarten rights, this can be viewed as underhanded and bad faith, thereby damaging the labor-management relationship and eroding trust. 

There is also risk if management deems an employee’s disciplinary fears unreasonable, and therefore denies a steward request.  For example, in one case management was meeting with an employee who had witnessed a safety-related event.  The employee requested his union steward, and management declined to provide one, saying the meeting was strictly for lessons-learned and future accident prevention.  The employee admitted to a procedural misstep in which he was involved, and the company then proceeded to fact-finding and discipline.  When the union threatened a ULP and grievance for a Weingarten violation, the company agreed on advice of counsel to remove the employee’s discipline.

The liberal – “we always have a steward there” approach.

I always ask a company’s management team, “When do you have a union steward involved?”  And the answer is usually something like, “Whenever the employee wants one,” or “We always have a steward there.”

This common and liberal approach has merit in many situations.

It removes the legal risk of a Weingarten violation for failure to allow representation. 

I was involved in a case where the employee did not request a steward during a fact-finding interview.  The employee asked management, “Do I need a steward?”  Management testified in arbitration that they said, “That’s up to you.”  But the employee testified that management said “no.”  The arbitrator did not find the employee’s statement to be credible.  But leaving these things to arbitrators creates risk. 

This approach also relieves supervisors of the responsibility for knowing the specific Weingarten requirements.  New supervisors often begin their leadership duties without any training on managing with a union. 

Employees, especially new ones, may not know their Weingarten rights or know when to request a representative.  If management routinely has a steward present for an interview or other meeting, the employee may benefit from representation that would have otherwise been absent.

Unions will likely look favorably upon a company’s policy of liberally involving stewards in employee matters.  It can help build and extend trust between labor and management, in part because it increases transparency and communication. 

But this approach often results in steward participation in coaching and counseling sessions that are best held privately between a supervisor and employee.  What could have been a low-stress, positive interaction can then change to an adversarial, union matter.

And the employee may find herself represented by a steward that she would not have chosen for any number of reasons.  Sure, she could make an objection and request another steward.  But will she want to embarrass the steward who is already there?  Or will she fear that management or even the union will resent her request?  Will she just opt to go forward on her own without a steward?  You can see that that this “liberal use” approach, although well-intended by management, can have unintended negative consequences.

How to best manage within these competing positions?  A well-trained management team that knows company expectations and makes appropriate situational decisions”

Company policy will often be a blend of strict Weingarten construction and more liberal representative participation, depending on circumstances. 

But the best decisions come from well-trained supervisors who understand both the company’s expectations and the basic legal requirements under which they must operate. 

Likewise, these well-trained supervisors know the value of consensus decision-making, how to use a professional pause for well thought-out decisions, and when to ask for help from peers or professionals without rushing to decisions.

A properly trained management team will apply its policies, collective bargaining agreements, and laws to handle each case for the best results with all constituents involved – the employees, the unions, the company, its shareholders and whomever.

They manage not just to solve today’s problem, but also to set the stage for better results in the future – better employee engagement, better labor-management relationships, and better company performance.

This is why MARC exists. 

MARC is not just a theoretical, academic exercise that supervisors quickly discard or forget.  MARC training is operational, boots-on-the-ground, from facilitators who have lived long careers in the trenches of labor relations.  The MARC manual is a comprehensive reference tool that great managers use more than any other resource. 

Make 2026 your year to ascend to labor-management greatness.

Please Use our “Contact Us” form Or Call Gary Kleckner at 216-963-7223  You will be glad you did!