Firefighting is consistently ranked as one of the most heavily organized professions in the United States. At the core of the rights that unionized firefighters enjoy is the right of coworkers to work together for their mutual protection, often referred to as the right to engage in concerted activities. Nowhere is the right to engage in concerted activities more important than when a firefighter is accused of misconduct and potentially facing discipline. That being said, when does a firefighter have a right to union representation?
Weingarten rights
The right to union representation during an investigative interview is commonly associated with a decision by the U.S. Supreme Court in National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251 (1975). In Weingarten, the Supreme Court affirmed a National Labor Relations Board (NLRB) decision that an employer’s denial of a union representative to an employee facing discipline is an unfair labor practice.
Simply stated, Weingarten held that denying an employee union representation at an investigatory meeting or hearing where the employee’s answers to questions could result in discipline against him violates the National Labor Relations Act. In most instances, the penalty for a Weingarten violation is that employer will be prohibited from disciplining the involved employee.
While Weingarten is a private sector case, most state labor relations boards follow the reasoning of the NLRB. A notable exception to the rule is the state of Texas, whose supreme court rejected Weingarten in 2013.
Debunking the myths
In the 40 years since Weingarten was decided, a number of myths and misunderstandings have unfortunately developed. Let’s take a look at seven common myths or misunderstandings about Weingarten rights.
Myth #1: Anytime a firefighter is questioned by a superior officer, the firefighter has the right to have a union representative present.
False. An employee is only entitled to a union representative during an investigative meeting or interview when the employee believes her answers could result in disciplinary action against her. If the questioning is not investigative and/or will not lead to discipline, union representation is not required. Also, if the interview involves the misconduct of another firefighter, Weingarten does not apply. In other words, if the department is interviewing Firefighter A as part of an investigation of Firefighter B, then Firefighter A does not have a right to a union rep.
Myth #2: Whenever a firefighter is being interviewed as a witness, a fire department should deny the firefighter’s request for a union representative since Weingarten does not apply.
False. While it may seem logical for a fire department to deny a union rep to a witness firefighter who is not entitled to one, that is not necessarily the case. Weingarten rights apply when a firefighter believes his answers could result in disciplinary action. The investigator’s beliefs do not matter. Thus, if an investigator interviews Firefighter A, mistakenly believing him to only be a witness to Firefighter B’s misconduct and denies Firefighter A a requested union rep, then the department will be unable to discipline Firefighter A should he implicate himself in the misconduct. A Weingarten violation will have occurred when Firefighter A’s request for a union rep was denied, and do-overs even for good-faith mistakes are not allowed. Lesson learned: If an employee requests a union rep, give him a union rep!
Myth #3: The fire department has an obligation to inform a firefighter of his or her right to a union rep prior to any interrogation.
False. As a general rule, there is no requirement that a firefighter be given the Weingarten equivalent of a Miranda warning before questioning. However, several states have a firefighter bill of rights that requires a fire department to inform firefighters of the right to a union rep before questioning. Some collective bargaining agreements have incorporated such warning requirements. My best practice recommendation is to always advise a firefighter prior to an interview of their right to have a union rep present during questioning.
Myth #4: When the union rep is present for an investigative interview as required by Weingarten, the rep cannot speak or ask questions.
False: During an investigative interview, a union rep does not have to sit quietly “like a potted plant.” While the rep is not allowed to become disruptive during the interview, the rep may interrupt the proceedings to clarify a question or to object to confusing or intimidating tactics.
Myth #5: The member being questioned has the right to insist on their union rep of choice.
False: While a member has a right to request a union representative, the member does not have the right to insist on “the” union rep of choice. The cases interpreting the employer’s obligations under Weingarten hold that the member cannot “unreasonably delay” an interview while seeking a preferred representative.
Myth #6: A union does not have to provide representation to an accused non-member who seeks assistance for a disciplinary interview.
False. In a collective bargaining environment, the union is the exclusive representative of all members of the bargaining unit. As such, the union has an obligation to protect the interests of dues-paying members and non-members alike. An exception exists in certain states that have laws that specifically state that the union does not have to represent non-members.
Myth #7: If a union rep advises a member not to answer questions during the interview resulting in termination proceedings being instituted, the member cannot be terminated because the mistake was made by the union, not the employee.
False. The universal penalty for refusing to answer questions during an investigatory interview is termination. Bad advice from a union rep or even an attorney will not be grounds for reinstatement. In fact, some courts that have dealt with such cases have flatly stated that the terminated employee may have a lawsuit against the union or attorney for malpractice, but the remedy for such mistakes is not reinstatement.
Conclusion
Weingarten rights and the right of firefighters to work together for their collective benefit are important yet often misunderstood protections for firefighters in a collective bargaining environment. Firefighters, union reps and fire department leaders need to understand these rights in order to ensure they are respected during administrative investigations.
Curt Varone
CURT VARONE has more than 40 years of experience in the fire service, including 29 years as a career firefighter with Providence, RI, retiring as a deputy assistant chief (shift commander). He is a practicing attorney who is licensed in Maine and Rhode Island and served as the director of the Public Fire Protection Division at the NFPA. Varone is the author of two books, "Legal Considerations for Fire and Emergency Services" and "Fire Officer's Legal Handbook," and remains active as a deputy chief in Exeter, RI.
