Firefighter Discipline, Interviews, Garrity and Weingarten

My column this month in Firehouse Magazine is on firefighter discipline and in particular the Garrity Rule. I received an email question from a reader that is worth sharing.

I am a Fire Chief and I read your article about the Garrity Rule in the July issue of Firehouse Magazine. I would like to ask you a question that was not specifically addressed in your article. Some departments such as mine have a union (IAFF local) that is not recognized by the City and therefore do not have collective bargaining rights. In that case, do the firefighters still have a right to union representation during questioning?

Excellent question. In the private sector, the National Labor Relations Board has gone back and forth over that very question. Historically the answer was no. The right of an employee to have a union rep present during an investigatory interview (known as the Weingarten Rule) was limited to unionized employees, or at least employees who are duly represented by a collective bargaining agent (whether or not they are members).

Under the Clinton administration, the NLRB changed its position and ruled that the National Labor Relations Act gives all workers (even in a non-union environment) the right to work collectively. Denying a request for a union rep during an investigatory interview violates that right. Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000).

In June of 2004, that decision was reversed under the Bush administration. IBM Corp., 341 NLRB No. 148 (2004). The O’Bama administration has not changed the rule, leaving the present private sector rule: non-unionized employees have no right to a union rep during an investigatory interview.

However, the NLRB ruling is only the law for private sector employers, while municipal firefighters are public employees governed by state law. Very often state labor boards follow the NLRB position on matters such as Weingarten – but that will vary from state to state.

In addition, several states have firefighter bill of rights (BOR) laws. Most BOR laws allow a firefighter to have a union representative, attorney or other employee representative present during an investigative interview. Some BOR laws require the fire department investigator to advise the firefighter of his/her right to have a union rep present prior to the interview.

So the short answer to your question is: it depends on state law. First you need to determine if your state has a BOR law, and if not check with the state labor board for any of their decisions on the matter. Then you need to check state case law to determine if there are cases upholding or overruling the labor board’s position.

My personal advice to fire chiefs is to inform the employee of right to have a union rep, and honor any request for a union rep that is made. To fully understand my thinking in the matter, you have to understand the professional standards concept. It is a philosophy that was first used in law enforcement as a way of enforcing discipline and I think it works in the fire service. It respects the noble service that firefighters provide while recognizing that complaints must be investigated. It is strict but it is fair and part of being fair is allowing the member to have a union rep.

I am teaching a 2 day class on firefighter discipline and conducting investigations in Indianapolis July 26-27 and Las Vegas August 2-3. We cover professional standards, bill of rights laws, due process, Garrity, Weingarten, and a whole lot more!