State’s Highest Court Takes Away Your Weingarten Rights

By Harry Greenberg, Esq.
Greenberg, Burzichelli, Greenberg

On February 20, 2007, the New York State Court of Appeals, the State’s highest Court, ruled public employees do not have “Weingarten” rights, which is the right to have a union representative present, upon request, if the employee reasonably believes an interview might result in disciplinary action.

History
In 1975, the United States Supreme Court upheld a National Labor Relations Board determination that an employee in the private sector has a right “to refuse to submit without union representation to an interview which he reasonably fears may result in his discipline.”  This case involved a lunch-counter worker accused of eating lunch without paying. The manager pressed the worker to sign a statement without union representation, and then later learned that at a different branch of the store, where she had recently worked, they did have a free lunch policy.

In deciding Weingarten, the United States Supreme Court looked to the specific language of the National Labor Relations Act (“NLRA”), most importantly that, “employees shall have the right … to engage in … concerted activities for the purpose of … mutual aid or protection.”  The Court viewed this language as Congress’s answer to the imbalance of economic power between labor and management. The Court said the NLRA provided an employee with the right to refuse to submit, without union representation, to an interview which the employee reasonably fears may result in the employee’s discipline. The Weingarten holding continues to be the law for private sector employees throughout the country.

Current Case
The current case involves a transit worker who allegedly used a racial slur when asked to show his train yard pass.  The Transit Authority (“TA”) asked the employee for a written response to the allegation.  The employee, who does not speak English as his first language, prepared a written response with the help of his union representative.  The TA was suspicious the union representative had influenced or dictated the content of the response.  The TA ordered the employee to come to a supervisor’s office to prepare a new response, and this time the TA refused to allow the union representative to accompany the employee.

The TWU filed an improper practice charge with the Public Employment Relations Board (“PERB”) asserting that the refusal of union representation violated its member’s rights under the Taylor Law. PERB held that the Taylor Law provides the same protections as the Weingarten case provides.  The TA filed a lawsuit against PERB asking the New York State Supreme Court to reverse the PERB decision.  The Supreme Court dismissed the TA’s lawsuit.  The TA appealed and the Appellate Division affirmed the Supreme Court. Up until this point, New York State public employees had Weingarten rights. However, the New York State Court of Appeals disagreed.

The Court of Appeals reversed the Appellate Division, the New York State Supreme Court, and PERB, and held that the Taylor Law language relied upon to grant Weingarten rights is not the same as the NLRA language because there is no “mutual aid or protection language.”  The dissent would have affirmed PERB’s and the lower court’s decisions indicating that Weingarten protections are implicit in the Taylor Law.  The last sentence of the dissent, written by Chief Judge Judith Kaye, states: “My hope is that the Legislature will enact, and the Governor will sign into law, an amendment to make explicit in the Taylor Law what to my mind is now implicit.”

Do I still have Weingarten rights?
If you are covered by Section 75 of the New York State Civil Service Law, for example, those civil servants with permanent appointment, then yes, you still have Weingarten protection. Also, if you presently have Weingarten rights in your Collective Bargaining Agreement, then yes, you are still protected.  Also, remember, your other rights regarding representation after charges are filed and served, remain unchanged. 

Regardless of these changes, we urge you to demand to have your union representative/lawyer present when being questioned by the employer in a “Weingarten” situation.

This case is about pre-charge interviews.  The New York State Legislature has already introduced a bill to fix the Court of Appeals ruling.  City Unions are also having legislation introduced in the City Council to ensure City workers have these same rights.  Hopefully, these bills will be acted on quickly.