Mass Public Employees Have Right To Union Attorney During Interview
The Massachusetts Appeals Court strengthened the ability of public sector unions to defend members accused of misconduct by affirming that employees have a right to be represented by a union attorney during an investigatory interview. The case is Town of Hudson vs. Labor Relations Commission, No. 06-P-1191 (July 12, 2007)
Under Massachusetts Public Sector Collective Bargaining Law, Chapter 150E, public employees in a bargaining unit have a right to union representation during an interview that may lead to discipline for the employee being interviewed. This is commonly referred to as a “Weingarten” right, based upon the landmark case of National Labor Relations Bd. v. J. Weingarten, Inc., 420 U.S. 251 (1975). While Weingarten arose in the context of private sector labor law, the Massachusetts Labor Relations Commission, which administers public sector labor law for state, county and local employees, has applied this doctrine to public employees. The Supreme Judicial Court has upheld the application of Weingarten to public employees in the past. Here, the Appeals Court quoted the Weingarten case’s rationale for locating this right under federal labor law:
"This is true even though the employee alone may have an immediate stake in the outcome; he seeks ‘aid or protection’ against a perceived threat to his employment security. The union representative whose participation he seeks is, however, safeguarding not only the particular employee’s interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly. The representative’s presence is an assurance to other employees in the bargaining unit that they, too, can obtain his aid and protection if called upon to attend a like interview.”
In Town of Hudson, the only dispute was whether the right to union representation includes a union attorney. The Court had little trouble in agreeing with the Commission that this right extends to attorneys retained by the Union. It held: “Therefore, for purposes of representation at a Weingarten interview, we see no distinction between representation by a union representative or business agent and representation by a union attorney." The Court was careful to note that this case did not involve a private attorney or outside counsel not involved in the regular collective bargaining relationship.
As a result of this decision, if the public employee requests the union-assigned attorney be present, the public employer has three options: (1) grant the request; (2) discontinue the interview; or (3) offer the employee a choice between continuing the interview unaccompanied by a union representative and having no interview at all. The employer cannot insist on continuing the interview without providing these options.
Please note, this decision does not require unions to provide members with legal representation. The choice of representative – whether a local official, bargaining agent, attorney, or no representative at all – is left to each individual union for each case and is guided generally by the union’s duty of fair representation. It also does not permit the union to impose a representative where the employee declines representation.