New York Court Finds No Weingarten Rights Exist Under State Law

In a case that will likely have less impact than would ordinarily seem to be the case, New York’s highest court has held that Weingarten rights do not exist by function of state collective bargaining law. In a case involving the New York City Transit Authority, the Court drew a distinction between the National Labor Relations Act and New York’s bargaining law, known as the Taylor Law.

The Court noted that where the National Labor Relations Act allows employees “to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing,” to be significantly different from the New York collective bargaining statute, providing that “public employees shall have the right to form, join and participate in, or refrain from forming, joining, or participating in any employee organization.” The Court found the absence of the “mutual aid and protection language” from the Taylor Law meant that Weingarten rights could not be implied into the New York statute.

The New York Public Employment Relations Board argued that a Weingarten right should be inferred from the Taylor Law’s provision for “the right to participate in” labor organizations. The Court rejected the argument, concluding that “the right to union representation at disciplinary interviews, however, is not inherent in the right to participate in a union. Of course, employees may seek such a right of representation in collective bargaining; in doing so, they are protected by the Taylor Law’s provision that they shall have the right to negotiate collectively with their public employers in the determination of their terms and conditions of employment. But nothing in the text of the Taylor Law suggests that a Weingarten right is given by the statute itself.”

The reason the Court’s decision may not have much impact is that a separate New York statute, known as Civil Service Law, Section 75(2), explicitly gives to employees the right to representation. Section 75(2) provides that “an employee who at the time of questioning appears to be a potential subject of disciplinary action shall have a right to representation by his or her certified or recognized employee organization and shall be notified in advance, in writing, of such a right.” In fact, it was the presence of Section 75(2) in New York law that was an important factor in the Court’s opinion that Weingarten rights did not exist as a function of the general collective bargaining statute. As put by the Court, “it would have made no sense to create the Section 75(2) version of the Weingarten right if a more robust version of that right already existed under the Taylor Law.”

Though the Court’s opinion will likely not have much impact, it was not without controversy, with the Court’s seven justices split 4-3 on the outcome. The dissenting judges found no basis to distinguish the Taylor Law and the NLRB, and believed that Weingarten rights should be implied in the Taylor Law because the circumstances of an employee’s reasonable fear that an investigatory interview may result in discipline is “consistent with the most fundamental purposes of collective bargaining.”

New York City Transit Authority v. New York State Public Employment Relations Board, 2007 WL 505418 (N.Y. 2007).

The article appears in our April 2007 issue.