No Right To Private Counsel Under Weingarten Rule

John Faulkner was a police officer for the Township of Exeter, New Hampshire Police Department, and was represented by the Exeter Police Association. During an investigation into Faulkner’s ticket-writing practices, the City assigned Lieutenant Stephen Dockery to investigate the matter.

When Faulkner arrived at work on March 31, 2004, he found a memo stating that Dockery wanted to interview him around 6:00 p.m. Faulkner called Joseph McKittrick, a local attorney with experience in labor matters, to represent him at the interview. McKittrick arrived in time for the interview, but was forced to wait in the lobby while Dockery interviewed Faulkner. After denying McKittrick access to the interview, Dockery asked Faulkner if he wished to have a union “representative present” and Faulkner declined.

The Association filed an unfair labor practice charge against the Town, alleging that excluding McKittrick from the interview violated the Association’s Weingarten rights. Under N.L.R.B. v. Weingarten, Inc., 420 U.S. 251 (1975), a union has the right to represent a member at an investigatory interview where the member reasonably believes the interview may result in discipline.

The New Hampshire Supreme Court rejected the Association’s arguments. The Court held that Weingarten rights only allow an employee the right to representation by a labor organization, not the employee’s private attorney: “The Association did not appoint McKittrick as a union representative until five days later. Faulkner had no authority to confer the status of union representative on McKittrick. Thus, on the evening of the interview, McKittrick could not have acted as a union representative. Even if the Association retroactively ratified McKittrick’s actions, this does not alter the facts as they existed on the evening of March 31.”

The Court reasoned that “protected rights in Weingarten flow from an employee’s request for union representation. Here, Faulkner failed to request a union representative, and thus no Weingarten rights could have been violated.”

Exeter Police Association, 2006 WL 2346317 (N.H. 2006).

This article appears in the October 2006 issue