Recent Decisions on Representation Under Weingarten

Employees with collective bargaining rights often have a right to representation in disciplinary interviews under a doctrine called Weingarten.  Weingarten was a Supreme Court case decided under the National Labor Relations Act (“NLRA”), which applies only to private sector employees, and generally provides employees with a right to a union representative in interviews which employees reasonably believe could lead to discipline. National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959 (1975). Because Weingarten arose under the NLRA, law enforcement officers do not have Weingarten rights under federal law.  Nonetheless, Weingarten is often followed in states that have collective bargaining laws similar  to the NLRA.  However, because state collective bargaining laws differ, whether and how Weingarten is applied to law enforcement officers varies greatly.  Additionally, officers often have equal or greater rights under state or local officers’ bills of rights or collective bargaining agreements.  (If anyone would like copies of these cases, or if you have any questions, please contact me.)  

Union Attorney Allowed As Weingarten Representative

In a case litigated by an I.U.P.A. local, the Appeals Court of Massachusetts recently affirmed a decision by  the Massachusetts Labor Relations Commission which found that a union attorney could serve as a representative for an employee when an employee had a right to representation under Weingarten. Sometimes employers attempt to prevent attorneys from serving as representatives, asserting that only union members or stewards can be Weingarten representatives.  The Massachusetts LRC and the court found that this limitation was an unfair labor practice.  However, the decision was clear that only a union attorney, and not  a personal attorney, had a right to act as a Weingarten representative.  (Thanks to attorney Peter Peroni and NEPBA, I.U.P.A. Local 9000 for their work on this case.) Town of Hudson v. Labor Relations Commission, --- N.E.2d ----, 2007 WL 1990184 (Mass.App.Ct., July 12, 2007)

Employees Allowed to Choose Union Representative

Pennsylvania's Supreme Court held that under the state's Public Employee Relations Act (PERA) and the rights afforded by Weingarten, an employee has the right to a union representative of the employee's choice as a witness during an investigatory interview, so long as the representative is reasonably available and there are no extenuating circumstances.  While the court held that the right to a representative was an employee right, not a union right, the Court was clear that it only allowed the right to a union representative, and not a personal representative. Com., Office of Admin. v. Pennsylvania Labor Relations, 916 A.2d 541 (Pa., Feb. 20, 2007).

No Right to Weingarten Representation Under New York Collective Bargaining Law

The New York Court of Appeals held that the state law allowing public employees to participate in a union does not include Weingarten rights.  The court noted that Weingarten rights are based on a section of the NLRA that provides protection for those who wish to engage in concerted activities for "mutual aid and protection."  However, the court held that because state law lacked language regarding "mutual aid and protection," and the state law had a separate section providing employees with a right to representation in disciplinary interviews, the employees could not claim Weingarten rights under state law. (Unfortunately for the employees, the state law allowing for representation is weaker in some respects than employee rights under Weingarten.)  New York City Transit Authority v. New York State Public Employment Relations Bd., 864 N.E.2d 56 (N.Y., Feb. 20, 2007).


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