BOSTON POLICE

EMPLOYEE’S RIGHT TO UNION REPRESENTATION

Carney Right to Remain Silent

Because I am accused of be­havior that could form the basis of criminal action against me and/or my responses could tend to implicate me in a criminal action, I assert my right under Article 12 of the Mass. Declaration of Rights and Carney v. Springfield to remain silent without fear of retribution. I refuse to answer all questions unless and until I receive transactional immuni­ty for all crimes that may arise from this investigation.

Weingarten Rights

The right of employees to have union representation at investigatory interviews was announced by the U.S. Supreme Court in a 1975 case (NLRB vs. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689) . These rights have become known as the Weingarten rights. Employees have Weingarten rights only during investigato­ry interviews. An investigato­ry interview occurs when a su­pervisor questions an employ­ee to obtain information which could be used as a basis for discipline or asks an employee to defend his or her conduct.

If an employee has a rea­sonable belief that discipline or other adverse consequences may result from what he or she says, the employee has the right to request union repre­sentation. Management is not re q u i red to inform the em­ployee of his/her Weingarten rights; it is the employees responsibility to know and request.

When the employee makes the request for a union repre­sentative to be present man­agement has three options:
(1) it can stop questioning until the representative arrives.

(2) it can call off the interview or,

(3) it can tell the employee that it will call off the interview un ­less the employee voluntarily gives up his/her rights to a union representative (an op ­tion the employee should al ways refuse.)

Employers will often assert that the only role of a union representative in an investiga­tory interview is to observe the discussion. The Supreme Court , however, clearly ac­knowledges a representative’s right to assist and counsel workers during the interview.

The Supreme Court has also ruled that during an investiga­tory interview management must inform the union repre­sentative of the subject of the interrogation. The representa­tive must also be allowed to speak privately with the em­ployee before the interview. During the questioning, the representative can interrupt to clarify a question or to object to confusing or intimidating tactics.

While the interview is inprogress the representative can not tell the employee what to say but he may advise them on how to answer a question. At the end of the interview the union representative can add information to support the employee’s case.

On June 15, 2004, The Na­tional Labor Relations Board ruled by a 3-2 vote that em­ployees who work in a nonunionized workplace are not entitled under Section 7 of the National Labor Relations Act to have a coworker accom­pany them to an interview with their employer, even if the affected employee reasonably believes that the interview might result in discipline.

This decision effectively re­versed the July 2000 decision of the Clinton Board that ex­tended Weingarten Rights to nonunion employees.

QUESTIONS

1) A representative sees a member being interviewed in the supervisor’s office . Should he demand to attend?
Yes. Representative h a v e the protected right to be includ­ed in any interview that may result in an employee’s disci­pline. However, if the employ­ee refuses representation, the representative cannot attend.

2) Miller is being ques­tioned about a workplace theft and is asked to provide information about his co­worker Jack, who is suspect­ed. Should Miller have union representation?
Yes. Although Miller may not be guilty of the theft, his refusal to answer questions about it could result in disci­pline. Also, he may be disci­plined should he have any knowledge about the theft. He has a right to have union rep­resentation.

3) Management asks an employee to submit to a urine test. Does Weingarten apply?
Yes and No. Since a urine test is not an investigatory interview, the employee does not have a right to union represen­tation. However, management must allow the employee to consult with the union to decide whether or not to take the test.

4) Can management pres­sure an employee to drop a Weingarten request?
No. Management commits an Unfair Labor Practice when coercing employees to give up their right to representation.

5) An employee is called to his supervisor’s office, but the steward is on vacation. Can that employee insist that an interview be delayed until the steward’s return?
No. If a union representa­tive is not available, another representative or employee can be substituted. However, if the employer is responsible for that representative not being available, then the su­pervisor must end the meeting until the representative is available.

6) I am a steward. If called in by my supervisor to dis­cuss a problem with my work, can I bring my chief steward?
Yes. Representatives are covered under Weingarten just like any other employee. If you have a reasonable fear of discipline or other adverse consequences, you too are en­titled to representation.

7) Can an employee ask for a lawyer during an investiga­tory interview?
No. Weingarten Rights only apply to union representation.

8) The unit commander telephones a member at home to ask about missing evi­dence. Does the member have to answer?
No. Weingarten Rights also apply to telephone interviews. An employee fearing disci­pline can refuse to answer without union consultation.

9) A manager denies an employee his/her Weingarten Right, yet continues to ask questions. Can the employee just walk out?
In some cases. If the man­ager consistently denies the re­quest, the employee may leave to get a steward, but not if the manager asks the employee to wait until a steward arrives.

10) Can Weingarten be in­voked during a polygraph ex­amination?
Yes. An employee may be represented during the pre-ex­amination as well as the test it­self.

11) Can management order an employee to open their locker without a representa­tive present?
Yes. Locker (as well as car and handbag) searches are not interviews, so Weingarten does not apply.

12) If an employee is asked to sign an acknowledgment upon receiving a warning slip, must management allow union representation?
No . The employee is not being interviewed; in fact, the employee has already received discipline.