Employer Cannot Bar Union’s Attorney From Serving As Weingarten Representative

The Town of Hudson, Massachusetts and Local 363 of the International Brotherhood of Police Officers (IBPO) are party to a collective bargaining agreement. In 1999, Jose Chaves, one of the Town’s police officers, was the subject of an internal affairs investigation. The IBPO assigned one of its attorneys, Marc Terry, to accompany Chaves to the interview.

Prior to the interview, Chaves and the internal affairs investigator discussed the upcoming interview and disagreed as to whether Chaves could have an attorney as his union representative. The investigator eventually did not permit Terry to accompany Chaves into the interview room. When Terry asked what would happen if Chaves refused to participate in the interview, the investigator answered that if Chaves did not agree to attend the interview voluntarily, he would have to order Chaves into the interview. Terry then advised Chaves to participate in the interview, to answer truthfully, and not to worry “too much” about what he said because any information obtained could not be used to discipline him as the investigator had denied Chaves his rights under National Labor Relations Board v. J. Weingarten, Inc, 420 U.S. 251 (1975).

After the interview was concluded, the IBPO filed an unfair labor practice charge with the Massachusetts Labor Relations Commission. The Commission found that while there was no right to a personal attorney under the Weingarten rule, “the reasoning rejecting an employee’s representation by a personal attorney does not apply to a union representative who is an attorney. Chaves requested to be represented in an investigatory interview by an attorney assigned by his own union. Under these circumstances, therefore, Terry cannot reasonably be characterized as an outside professional uninvolved in the employer-employee relationship. Nor was Terry present at the investigatory interview solely to protect Chaves’ personal interests.”

The Town challenged the Commission’s decision in the Appeals Court of Massachusetts. The Court turned away the challenge. The Court observed that “in reviewing the Commission’s decision, we must accord deference to the Commission’s specialized knowledge and expertise, and to its interpretation of the applicable statutes. As was pointed out in Weingarten, ‘the responsibility to adapt the National Labor Relations Act to changing patterns of industrial life is entrusted to the National Labor Relations Board. It is the province of the NLRB, not the courts, to determine whether or not the need for representation exists, and also to determine who may be designated a union representative.’

“As indicated in its discussion, the basis for the Commission’s decision is that, unlike an employee’s personal attorney, a union attorney’s role as a Weingarten representative is to protect the rights of the employee, the union, and its members. The determination that a union attorney may be a Weingarten representative is a permissible construction of the statutes, and is consistent with the authorities and the purpose of the law.”

Town of Hudson v. Labor Relations Commission, 60 Mass.App. CT. 549 (Mass.App. 2007).

This article appears in the September 2007 issue