WEINGARTEN & CARNEY RIGHTS
As unionized Massachusetts public employees, MBTAPA members have two (2) discrete sets of rights regarding any involvement with management from which discipline and/or criminal charges may result. The first are Weingarten rights, which resulted from a 1975 National Labor Relations Board case. The second are Carney rights, which resulted from a 1990 Massachusetts SJC case. Both are explained below.
Weingarten Rights (Representation in Discipline Meetings)
Weingarten rights include the right of any bargaining unit member to have representation (e.g. a union officer or a fellow bargaining unit member) present at any meeting with a supervisor in which the unit member has a “reasonable belief” that discipline may result. If the officer is unsure whether discipline could result from the meeting, he or she has a right to ask the supervisor – could discipline result from this meeting? If the officer does want a representative present for a meeting he or she should:
Make a clear request for union representation before or during the interview. (You cannot be punished for making this request.)
After the employee makes the request, the Employer must choose from among three options. The Employer must either: (a) grant the request and delay questioning until the union representative arrives and has a chance to consult privately with the employee; (b) deny the request and end the interview; or (c) give the employee a choice of having the interview without representation or ending the interview.
If the employer denies the request for union representation, and continues to ask questions, it commits a prohibited practice in violation of M.G.L. c. 161A and the employee has a right to refuse to answer questions. The employer may not discipline the employee for such a refusal.
Carney Rights (Transactional Immunity in IA Investigations)
All Massachusetts public employees have Carney rights. Under Carney you cannot be compelled to incriminate yourself in an internal affairs investigation. Before a Massachusetts public employee “can be compelled to make any statement he must be granted State transactional immunity as to any such statements”. Transactional immunity is that which “accords full immunity from prosecution for the offense to which the compelled testimony relates, . . ..” Ainsworth v. Risley, 244 F.3d 209, 220 (1st Cir. 2001).
Accordingly, if you are the subject of an investigation which has the potential for criminal charges – different from a non-criminal investigation about, for example, insubordination, attendance issues, or poor work performance for which only your Weingarten rights would apply – you should immediately contact your union representative so that he or she can begin the process for obtaining transactional immunity. You must still attend any interview as ordered by a supervisor while a request for transactional immunity is being resolved, as failure to appear could subject you to an additional insubordination charge. However, you have a right to refuse to answer any questions at the meeting pending resolution of your request for transactional immunity, and you cannot be punished for exercising that right.
Is the investigation administrative or criminal? If criminal, invoke your right to counsel immediately. If administrative make sure your union representation, or yourself, asks “Is [Officer Name] ordered to be here today?” and “If they refuse to talk can they be disciplined up to and including termination?”