Weingarten Rights

Yes. CGSU-UE is the union representing Ph.D. and master’s students at the Ithaca, Geneva, and Cornell Tech campuses who hold graduate assistant, teaching assistant, research assistant and graduate research assistant titles and receive a stipend for that appointment. These students have Weingarten rights. Weingarten rights require representation by a union. Students who are not in the union do not have this right.

Any meeting may be an “investigatory interview” provided that all of the following circumstances exist:

• A faculty member, or other manager, representative of management, or supervisor is questioning an employee.
• The questioning is part of an investigation into the employee’s performance or work conduct. Asking an employee to defend, explain, or admit workplace misconduct or performance issues may form the basis for discipline or discharge.
• The employee reasonably believes that the investigation may result in discharge, discipline, demotion, or other adverse consequence to their job status or working conditions.

• Instructional meetings where an employee receives training or correction on work techniques. Meetings of this nature generally do not lead to discipline.
• Meetings in which an employer informs an employee (or employees) of workplace policies. These meetings typically do not lead to discipline.
• Meetings in which the employee is informed in advance that no discipline or adverse employment action will result from the meeting.
• Meetings about disciplinary decisions that have already been made. If an employer has made a final decision on a disciplinary action, a meeting with an employee to inform them of that decision is not considered investigatory.
• Meetings that are purely academic in nature.

Even in the above examples, however, the nature of a meeting may change as it progresses. If an employee reasonably believes that a meeting that commenced for some other purpose has become an investigatory interview, the NLRB will look to the above factors to determine if an employee’s request for a representative should have been honored.

No. Not every meeting will be an investigatory interview. Examples of meetings that are not investigatory interviews:

• Regular lab or team meetings
• Workplace training & instruction
• Planning or goal-setting meetings
• Normal academic or committee meetings where no performance concerns or discipline are being considered
• Meetings to impose discipline that has already been decided

Students outside the bargaining unit are not entitled to a union representative during any meeting, investigatory or not. This includes any student who is not currently appointed as a TA, GRA, RA or GA. Fellows are not in the bargaining unit, nor are students who have only hourly appointments.

Bargaining unit members are not required to request union representation in any particular format. A verbal or email request is sufficient to assert these rights.

The NLRB and federal appellate courts have generally interpreted the request requirement liberally. For example, employees have been found to request a Weingarten representative when they did not expressly demand a Weingarten representative but instead asked:

• “Should I have someone in here with me, someone from the union?”
• If the employee “needed a witness for an investigatory interview.”
• “I would like to have someone there that could explain to me what is happening.”

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.

Do not ignore a request for representation. You may:

• Grant the student’s request & delay the interview until a representative arrives, or
• Deny the request if the meeting is not related to an investigation or discipline. Here is sample language:
  • “Cornell invites union representation in any meeting where a bargaining unit member is subject to an investigatory interview that could lead to discipline, in accordance with established Weingarten Rights. The purpose of our meeting is not anticipated to be investigatory”

To the extent that you are unsure as to whether a meeting would be considered an investigatory interview, we ask that you discuss this with Cornell’s Office of General Counsel and/or Labor Relations Team prior to holding the meeting with the student.

You are required to inform the union representative as to the subject matter of the interview and allow time for that representative to meet with the employee prior to questioning.

An employer may deny an employee’s request for representation by a Weingarten representative of the employee’s choice if that representative is either:

• • materially unavailable;
  • was personally involved in, or the subject of, the event giving rise to the interviews; or
  • has a history of disrupting interviews and interfering with investigations.

When a requested representative is unavailable, the employer can suggest another available alternative representative, but the employer has no obligation to do so.

No, if an employee requests more than one representative, the employer can require the employee to select one of the representatives.

Yes, employers are required to inform Weingarten representatives as to the subject matter of the interview and allow time for that representative to meet with the employee prior to questioning.

During the interview, a representative may ask the employer to:

• Clarify questions,
• Give the employee advice on how to answer questions (within limits), and
• Provide additional information to the employer after the questioning.

A representative may also object to questions if they are badgering, intimidating, or offensive.

Yes. The right to representation is not unlimited.

• One union representative is sufficient. The university is not required to allow multiple representatives into a meeting.
• Students are not entitled to the union representative of their choosing. If their specified union representative is unavailable at the time of the meeting, they do not have the right to unduly delay the holding of the meeting.
• Representatives must remain civil and may not unduly interfere with the university’s legitimate efforts to investigate an issue.
• Representatives may also not instruct the students what to say and what not to say, and may not advise students to give false answers.
• Depending on what is agreed to in the collective bargaining agreement with the union, there may be additional limits imposed on these rights. You should be sure to review the collective bargaining agreement for these limits (if any) prior to holding any investigatory interview.

If a representative engages in unduly disruptive or hostile behavior during a meeting, you may:

• Request that the representative cease the activity
• Remove the representative from the meeting; or
• End the meeting and contact Cornell’s Office of General Counsel to discuss next steps:

A failure to allow representation in an investigatory interview can have serious repercussions. You may be unable to uphold the disciplinary consequences, and the university could face an unfair labor practice charge before the NLRB.

A faculty member calls one of her TAs into a 1:1 meeting to discuss the TA’s increasingly poor performance at work. The faculty remember has received several negative reviews from undergraduate students regarding the TA’s attendance & attitude. The TA brings a union representative to the meeting. At the meeting, the union representative demands clarification of several questions.

Are the union’s representative’s actions permissible?

• Yes, the representative’s requests are permissible. A union representative can seek clarification of the employer’s questions.
• The representative can also request breaks in the interview to meet privately (or “caucus”) with the employee.
• A representative cannot instruct the employee to provide false information.

A third year Ph.D. student is meeting with her advisor to review and complete the annual SPR. The student did well in first year coursework but struggled with preliminary research and lab techniques as a GRA in year two, although she received an overall “satisfactory” SPR rating. She’s still struggling in year three and her advisor wants to both encourage her redouble her efforts at preparing for the A exam, but also question why she is failing to meet these standards as a GRA. The advisor would like to alert her that a failed A exam will result in her being dismissed from the program with a terminal master’s degree.

Is a union representative permitted to attend the SPR meeting?

• Although the purpose of the meeting is fundamentally academic, the advisor would nevertheless like to question the student about why she is failing to meet standards as a GRA. Given that the advisor would like to question the student about her GRA performance in addition to the possibility that this student may be dismissed from the program if improvement is not made, it is likely that this could be seen as an investigatory interview that implicates the student’s Weingarten Rights.
• Please note that if there were no significant performance of disciplinary issues to discuss and the student was on track to receive a rating of “satisfactory” or “excellent” there would be no need to include a union rep.