EMPLOYEE'S RIGHT TO UNION REPRESENTATION

Weingarten Rights

A Summary of Your Weingarten Rights

          In 1975, the U.S. Supreme Court ruled that unionized employees have a right to representation during investigatory interviews by management. These are called Weingarten Rights.

What is an investigatory interview?

          An investigatory interview occurs whenever a supervisor, your chief or someone from Internal Affairs questions an employee to obtain information which could be used as a basis for discipline.  The employee must have a “reasonable belief” that disciplinary action may result from what he or she says at the interview.

For example, an employee who is questioned about drugs is clearly involved in an investigatory interview and has the right to AFSCME representation.

However, a supervisor who gives instruction on how to properly respond to a particular type of call is not conducting an investigatory interview.  The possibility of discipline resulting from such an instructional discussion is usually remote.

Employees are not entitled to AFSCME representation if the employer is simply informing the employee of some discipline which has already been decided.

When an investigatory interview occurs, the following rules apply:

Rule 1. The employee must make a request for AFSCME representation either before or during the interview.  Employers have no duty to inform workers of their rights.  Workers who fail to request AFSCME representation can be questioned at length.

Rule 2. Once an employee makes a request, the employer must choose from among the following options:

a. The employer may grant the request and delay questioning until the AFSCME representative arrives and has a chance to consult with the employee.

b. The employer may deny the request and end the interview immediately (and possibly proceed with the discipline based on other evidence)

c. The employer may give the employee a choice of (1) continuing the interview without representation, or (2) discontinuing the interview.

Under no circumstances can an employer ignore or deny a Weingarten request and continue asking questions.

Rule 3. If an employer denies the request for AFSCME representation, the worker has a right to refuse to answer further questions.  The employer may not discipline the employee for such a refusal; however, you do not have the right to refuse to attend the meeting even if AFSCME representation has not been provided.

The Role of the Steward in Weingarten Hearing

The presence of a AFSCME steward can be crucial, and both members and stewards should be aware of their rights.  The employee does not have the right to a AFSCME representative of their choice.  An employer is obligated to honor a request for representation by the attorney for AFSCME.  However, the department does not need to reschedule to a time where the attorney or other representative is available, provided there is one AFSCME representative available at the time of the interview.  If an employee makes a valid request for a specific AFSCME representative who is available but who is not an employee, the employer cannot force the employee to accept another AFSCME representative.  An employee’s request for a personal attorney need not be granted. 

Prior to the interview the employee and the steward have the right to know the subject matter of the interview.  The steward must be allowed to take the worker aside for a conference before questioning begins.  The steward must be allowed to speak during the interview.  The steward can request that the supervisor clarify a question so that the worker can understand what is being asked.  Before questions have been asked, the steward can give advice on how to answer.  When the questioning ends, the steward can provide additional information to the supervisor.

AFSCME officials are entitled to have another AFSCME representative or AFSCME member present at an interview at which they are the potential recipients of discipline for misconduct.  This is true even if the AFSCME steward or the AFSCME representative usually provided is available.  If the AFSCME waives the right of its members to choose their representative, then the employee must accept the AFSCME representative proffered by the employer.

Once a valid request for a representative has been made, the request is considered a continuing one and remains applicable to subsequent meetings and interviews.

If Weingarten rules are complied with, stewards have no right to tell workers not to answer questions, or to give false answers.

The presence of a AFSCME steward is crucial. It can save workers from making foolish statements that may lead to discipline or discharge.

AFSCME members who seek to represent an employee at an investigatory interview are engaged in protected concerted activity.  An employer who discharges an employee for engaging in such activity violates Section 8(a)(1) of G.L.c. 150E.  It is also a Section 8(a)(1) violation for an employer to threaten to discipline a AFSCME steward if the steward refuses to represent an employee at an interview.

Waiver of Weingarten Rights

Weingarten rights of unit employees may be waived by a AFSCME in a collective bargaining agreement.  Waiver of the right must be made by the individual employee and it must be “clear and unmistakable.”

Remedies

          A make-whole remedy, including reinstatement and backpay, is appropriate only if the employee is discharged or disciplined for asserting the right to representation. When the employer denies a valid request for representation but disciplines or discharges the employee for the misconduct that was the subject of the interview, the Commission will order only that the employer cease and desist from the unfair labor practice.

CARNEY Rights

          In addition to the rights unionized employees are provided under Weingarten, public employees in Massachusetts have additional protections under the Articles of the Massachusetts Constitution.  Public employees cannot be compelled to incriminate themselves in an internal affairs investigation.  If you are the subject of an investigation by your department which has the potential for criminal charges you have a right to request transactional immunity prior to making any statement.  Carney v. Springfield, 403 Mass. 604 (1990); Baglioni v. Chief of Police of Salem, 421 Mass. 229 (1995); Commonwealth v. Dormady, 423 Mass. 190 (1996).

          Should you or a member of your bargaining unit find yourself in the midst of an internal affairs probe which has criminal implications it is best to contact AFSCME counsel so that a request for transactional immunity can be made.  Once transactional immunity has been conferred the public employee must answer all questions which relate

 to employment and can be disciplined for refusing to answer those questions, but cannot be criminally prosecuted for any answer he/she gives.  While an employee has a right to refuse to answer questions pending the resolution of the request for transactional immunity, an employee ordered to appear at an interview must appear even if a request for immunity has been made.  The failure to appear as ordered at an interview could subject the employee to an additional charge of insubordination and could be independent grounds for termination, Massachusetts Parole Board v. Civil Service Commission, 47 Mass. App. Ct. 760 (1999).

          Instances of internal affairs probes which could lead to criminal charges are numerous.  Matters include investigations into allegations of a member hitting a civilian (assault and battery) to members who do not show up for assignments put still receive a paycheck (larceny), to investigations into off-duty incidents where they exercised public employee powers.

          It is so important that you not allow a member into an internal affairs interview prior to his meeting with AFSCME counsel.  What is said in the first minute of the interview is something that the employee will never be able to take back.  For most members an Internal Affairs interview will be a once in a lifetime event.  It is best to be properly prepared and represented by competent attorneys who specialize in representing public employees when brought into such an important interview.