Know Your Rights
The Demise of 'Weingarten'

By JAMES A. BROWN

This winter, the state's highest court issued a stinging reminder that public employees lack the same rights enjoyed by their private-sector counterparts. Public-sector employees already know that the state's Taylor Law bars them from striking. Now, the state's Court of Appeals in New York City Transit Authority v. New York State Public Employment Relations Board has held that public-sector employees no longer have a statutory right to representation at investigatory interviews which may lead to discipline.

Public-sector employees have grown accustomed to invoking this right to representation (often referred to as a "Weingarten right") during disciplinary interviews. The loss of this statutory right represents a serious blow to public-sector union members.

Denied Representation

In New York City, the Transit Authority demanded that a Car Inspector write a statement which could have led to his discipline. After the Authority insisted that the employee draft the statement without the assistance of the union representative he requested, the employee's labor union alleged an improper practice under the Taylor Law.

PERB found that the Car Inspector's right to representation had been violated. On appeal, both the trial court and the appellate division affirmed PERB's finding of an employer improper practice.

However the Court of Appeals, the state's highest court, in a sharply divided opinion, held that public employees have no Weingarten rights under the Taylor Law. The outcome was particularly surprising given that PERB, the state agency charged with enforcing the state's Taylor Law, had previously recognized such public-sector Weingarten rights.

Weingarten's History

In 1975, the United States Supreme Court recognized the Weingarten right to representation based on specific language in the National Labor Relations Act (NLRA) which confers upon private-sector employees the right to organize and also to "engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." The Supreme Court, relying on this language, held that employees have a right to representation during investigatory interviews at which they may "be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating circumstances."

When the Transit Authority's case reached the Court of Appeals 30 years after Weingarten was decided, the state's high court correctly observed that the Taylor Law contains no such "mutual aid or protection" language. Thus, the Court of Appeals concluded that the textual basis for conferring Weingarten rights on private-sector employees does not exist for public-sector employees.

Chief Judge Judith Kaye, in a strongly-worded dissent, admonished the majority for striking down public-sector Weingarten rights. In her dissent, the Chief Judge observed that the majority had not properly considered that the Taylor Law was intended to "promote harmonious and cooperative relationships between government and its employees." The Taylor Law also guarantees that public employees may "form, join and participate in any employee organization." According to the Chief Judge, this language is a basis for public-sector Weingarten rights; in fact, PERB relied on this same "participation" language when it earlier recognized public-sector Weingarten rights.

Deference Not Shown

The fact that PERB had recognized public-sector Weingarten rights is what makes the high court's decision so difficult to reconcile. The court system often complains of being overrun with lawsuits; thus we are told that the courts, out of necessity, are likely to defer to the decision-making of our administrative agencies such as PERB. Yet no such deference was shown here.

The Legislature must now take steps to reform the Taylor Law to restore public-employee Weingarten rights. Likewise, the City Council must amend the New York City Collective Bargaining Law which also confers Weingarten rights and similarly contains no "mutual aid or protection" language. Fortunately, such rights may also be negotiated by labor unions in collective bargaining.

While the Court of Appeals has suspended the right to representation (based on the Taylor Law) during investigatory interviews, employers still run a risk if they deny Weingarten rights to public employees. Civil Service Law Section 75, which pertains to disciplinary proceedings, still provides that evidence procured by public employers in violation of Weingarten safeguards cannot be used by employers at Section 75 disciplinary hearings.

James A. Brown is a partner in the law firm Brown & Gropper, LLP. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com .