Union Rights & Highlights

Public employees have certain constitutional rights that apply in their employment that may not apply to private employees.

For example, in Garrity v. New Jersey, the Supreme Court held that statements obtained in the course of an investigatory interview under threat of termination from public employment couldn’t be used as evidence against the employee in subsequent criminal proceedings. If, however, you refuse to answer questions after you have been assured that your statements cannot be used against you in a subsequent criminal proceeding, the refusal to answer questions thereafter may lead to the imposition of discipline for insubordination. Further, while the statements you make may not be used against you in a subsequent criminal proceeding, they can still form the basis for discipline on the underlying work-related charge.

To ensure that your Garrity rights are protected, you should ask the following questions:

1. If I refuse to talk, can I be disciplined for the refusal?

2. Can that discipline include termination from employment?

3. Are my answers for internal and administrative purposes only and are not to be used for criminal prosecution?

If you are asked to provide a written statement regarding the subject of the interview, the following statement should be included in your report:

“It is my understanding that this report is made for internal administrative purposes only. This report is made by me after being ordered to do so by my supervisor. It is my understanding that refusing to provide this report could result in my being disciplined for insubordination up to and including termination of employment. This report is made pursuant to that order and the potential discipline that could result for failing to provide this report.”

In 1975, the U.S. Supreme Court, when deciding the case NLRB v. Weingarten, ruled that an employee has a right to Union Representation during an investigatory interview. This right is known as “Weingarten.”

The employer is not obligated to inform the employee of his/her right to Union Representation. The employee is responsible for exercising his/her “Weingarten” rights when he/she believes that discipline or some adverse consequence may occur as a result of answering the questions of a supervisor or manager.

An investigatory interview occurs when:

1. Management questions an employee to obtain information, and
2. The employee has a reasonable belief that discipline or other adverse consequence may result from what he/she says.

When an employee exercises his/her “Weingarten” rights prior to or during the investigatory interview, management has three options:

1. Stop questioning until Union Representation arrives

2. Call off the interview or,

3. Tell the employee that the interview will be called off unless the employee voluntarily gives up his/her right to Union Representation (an option the employee is strongly encouraged to always refuse)

The Union Steward has the following “Weingarten” rights:

1. The right to find out from management what the interview is about
2. The right to meet privately with the employee prior to the interview
3. The right to speak and ask questions of management during the interview
4. The right to assist the union member in answering questions
5. The right to object to abusive or harassing questions

If you are being subjected to an investigatory interview, state the following to management:

“If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I respectfully request that my Union Representative, Union Officer, or Union Steward be present at this meeting. Without Union representation present, I choose not to participate in this discussion.”

When just cause is required in the case of suspension without pay, involuntary demotion, or involuntary termination, be aware that prior to any disciplinary action, “The …tenured public employee is entitled to oral or written notice of the charges against him or her, an explanation of the employer’s evidence, and an opportunity to present his or her side of the story.

This right is known as the “Loudermill Right” based upon the 1985 U.S. Supreme Court decision in the case of Cleveland Board of Education v. Loudermill.

A basic principle in disciplinary cases is that management must have “just cause” to impose the discipline. Arbitrators’ decisions over the years have resulted in a kind of measuring stick — known as the “Seven Tests of Just Cause” — that can be applied to discipline cases.

Seven Tests of Just Cause:

1. Was the employee adequately warned of the probable consequences of the employee’s conduct?

2. Was the employer’s rule or order reasonably related to the efficient and safe operation of the job function?

3. Did management investigate before administering the discipline?

4. Was management’s investigation fair and objective?

5. Did the investigation produce substantial evidence or proof that the employee was guilty of the offense?

6. Has the employer applied its rules, orders and penalties evenly and without discrimination?

7. Was the amount of discipline reasonably related to the seriousness of the offense and the employee’s past service and record? (Did the “punishment fit the crime?)

If the answer to one or more of these questions is “no,” the union can argue that management did not have just cause to take the disciplinary action.

From time to time, members may feel their union rights have been abridged or disputes concerning the application or interpretation of the Collective Bargaining Agreement may arise. Members may speak to a Union officer or steward at any time, but in order to proceed with filing a grievance, a member must fill out a Grievance Fact Sheet.

If you believe that there is an issue where you would like to file a grievance, please complete the Grievance Fact Sheet and email it to Lisa Washko, Chapter Vice President and Head Steward. She will then arrange a meeting to discuss the problem and the process going forward.