Public Employee Press

Right to rep in disciplinary interviews affirmed

District Council 37 affirmed members’ rights in situations the employees believe could lead to discipline by winning an important decision in April from the impartial Board of Collective Bargaining.

At a case conference that a Human Resources Administration worker believed would lead to disciplinary action, a supervisor refused the employee’s request for union representation and continued the meeting without the employee’s consent.

The board ruled that management’s conduct violated the DC 37 member’s rights under the Weingarten rule as it applies under the New York City Collective Bargaining Law.

The board ordered HRA to stop interfering with members’ right to union representation during an investigatory interview that may lead to disciplinary action. Weingarten rights protect the employee’s job and apply more broadly to all union members regardless of civil service status — permanent, provisional part-time or full-time — explained DC 37 General Counsel Eddie M. Demmings.

“The Weingarten rule strengthens the union’s ability to defend members beyond the limitations of the collective bargaining agreement,” he said.

This is just the second case BCB has heard involving members’ Weingarten rights. In 2003, the board ruled that New York City municipal employees are covered by the federal rule, which originally governed only the private sector.

In that case, BCB decided that city employees can invoke their Weingarten rights by requesting union representation during any agency interview or meeting the employee reasonably believes may result in disciplinary action, such as loss of pay, suspension or termination.

The 2003 decision said that under no circumstances should management continue the interview without granting the request for union representation, unless the employee understands his or her choices and voluntarily agrees to remain unrepresented.

The April BCB decision came in the first case to test the 2003 ruling in a dispute between a DC 37 member and the city — and DC 37 won.

“This means union members can invoke the Weingarten rule and request union representation if they reasonably believe their statements at an interview, conference or meeting with management could be construed as incriminating or could lead to discipline,” said Diana York, the DC 37 lawyer who argued the case.

If a member reasonably believes any meeting or interview could lead to disciplinary action, she said, “The employee should request union representation. If management denies the request and continues the interview, they have violated the Weingarten rule,” and the union can file an improper practice charge. That could protect their work record and job security from any adverse action by management, which would not be able to use information gathered at that interview against the member.

“In this circumstance a union member must ask for or demand their Weingarten right to union representation or lose that right,” Demmings said.

— Diane S. Williams