cont'd - Iowa Professional Fire Fighters

Welcome to 

Labor-Management Disputes: What to Do 

Before the Lawyer Gets Involved 

December 9, 2008 

Kurt Rumsfeld 

IAFF Legal Counsel

Outline of Topics 

� A Bad Day at the Office – A Common Scenario 

� Why Should I Care? 

� Once You’ve Been Summoned 

� Garrity rights (5 th Amendment) 

� Loudermill rights (5 th & 14 th Amendment) 

� 1 st Amendment rights 

� 4 th Amendment rights 

� Polygraphs/Lie Detectors (handout) 

� Extreme Situations 

� Things to Be Careful Of 

� Privileged communications? 

� Criminal charges? 

� Two or more bargaining unit members involved? 

� Defamation 

� Obey now, grieve later

Outline of Topics (cont’d) 

� “Bill of Rights” Laws (handout) 

� Grievance Investigations 

� Information requests 

� FOIA requests (handout) 

� Tales from the Field 

� The IAFF Can Help

Disclaimer 

Please note that this presentation is offered 

solely for informational purposes, and is not 

intended, nor should it be relied upon, as legal 

advice. An individual or affiliate in need of legal 

assistance on any topic covered in this 

presentation should contact and confer with 

legal counsel to obtain legal advice appropriate 

to the particular situation.

Scenario 

A Bad Day at the Office

Scope of this Class 

� This class is designed to get you through the first 24 

hours of an employer’s disciplinary investigation, or the 

initial investigatory stages of a grievance procedure, 

before you have engaged your local’s lawyer 

� Have the phone number of a good labor lawyer 

� You will sometimes hear me say “It depends” 

� What state do you live in? 

� Public vs. private employer

Why Should I Care? 

� Are you the exclusive bargaining agent? 

� Weingarten rights 

� Duty of fair representation 

� Even if you’re not the exclusive bargaining agent: 

� Great way to prove value to your membership, when they 

need you most 

� Might save you some money 

� And you might soon be the exclusive bargaining agent 

(pursuant to the Public Safety Employer-Employee 

Cooperation Act)

Weingarten Rights 

� NLRB v. Weingarten, 420 U.S. 251 (1975): initially decided by 

the National Labor Relations Board (NLRB) interpreting the 

National Labor Relations Act (NLRA), which technically applies 

only to private sector employers 

� Check your local jurisdiction’s laws 

� In re University of Dentistry of New Jersey and Committee 

of Interns and Residents, 144 N.J. 511 (N.J. 1996) 

(analogizing state law to NLRA to find Weingarten rights in 

the public sector) 

� While the NLRB has gone back and forth on this, rights only 

apply (currently) to workplaces represented by exclusive 

bargaining agents 

� Employee has the right to request and obtain union 

representation in an interview or meeting with an employer 

related to an investigation which the employee reasonably 

believes could result in disciplinary action

Weingarten Rights (cont’d) 

� The employee must request the representation, 

and the employer has no duty to inform the 

employee of the right 

� Doesn’t attach to mere notifications of 

disciplinary action already decided upon, or to 

informal discussions regarding performance if 

no disciplinary action is contemplated 

� Attaches to stewards and other union officers 

(not required to “self represent”)


� Once request is made, employer has three choices: 

� Grant the request and wait for the union representative to show up 

� Discontinue the interview 

� Offer the employee the choice of continuing the interview without a union 

representative, or having no interview at all (thereby foregoing any benefit that 

might have accrued to the employee) 

� Employer need not postpone the interview until a particular union 

representative becomes available, but employer also can’t insist upon a 

particular union representative 

� If employer continues to question employee after denying right to union 

representative, it is an unfair labor practice and employer cannot discipline 

employee for refusing to answer 

� Seek to have arbitrator exclude evidence derived from meeting where 

Weingarten rights were violated in the arbitration over the resulting discipline 

– Pottsville Area School District, 91 LA 515 (Mayer, 1988)


� Role of the union representative: 

� Has the right to speak, and to provide assistance and 

counsel, but cannot disrupt or obstruct interview, 

and does not have right to bargain over purpose of 

the interview 

� Has the right to confer in advance, in private, with 

the employee, and to consult with employee before 

responding to a question 

� Has the right to be informed of the subject matter of 

the interview

Garrity Rights 

� Garrity v. New Jersey, 385 U.S. 493 (1967) 

� Applies to employees who are being questioned by their public 

employer (regardless of whether employees are represented by 

exclusive bargaining agent) 

� Employees may be required to answer truthfully to employer 

inquiries related to the performance of their official duties, and 

may be subject to discipline for failure to do so 

� Public employees, however, have a Fifth Amendment right 

against coerced self-incrimination arising from such 

interrogations. Therefore, if a public employee is required to 

answer a question in a way that might incriminate him/herself, 

the employee is automatically entitled to immunity from the use 

of his/her responses against him/her in a criminal proceeding.

Garrity Rights (cont’d) 

� If the right is violated, neither the response, nor 

evidence that is derived from the response, can 

be used against the employee in any criminal 

proceeding. 

� The response can, however, still be used against 

the employee for disciplinary purposes, and the 

immunity from criminal prosecution extends 

only to the use of the response, not to the 

underlying conduct.


� Once assured that their answers cannot be used 

against them in subsequent criminal 

investigations, employees may be disciplined for 

refusing to answer, or for answering 

untruthfully, so long as the question is 

specifically, directly and narrowly related to the 

employees’ official conduct.


� Employee may assert Garrity right, and may then not 

be disciplined for having done so. 

� The employer is not necessarily required to inform 

employees that their responses might subject them to 

criminal liability, or that they have the right to invoke 

the 5th Amendment. Garrity rights, however, 

automatically attach to a response so long as the 

employee can establish that the response was given 

under threat of discipline for failure to respond.


� Union representatives who are present during employer 

interrogations should invoke Garrity if there is even a 

slight chance that an employee’s answers could subject 

him/her to criminal liability. 

� Make sure the employee hasn’t simply volunteered to 

answer the employer’s questions. 

� Establish the following at the outset of the interview: 

� What is the purpose of the questioning? 

� Will discipline result from a failure or refusal to answer? 

� Can that discipline include termination from employment? 

� May the employee’s answers be used to criminally prosecute 

the employee?

Loudermill Rights 

� Cleveland Bd. of Education v. Loudermill, 470 U.S. 532 

(1985) 

� Public employees found to have a vested property right in 

their employment cannot be deprived of this right without: 

� Oral or written notice of the charges against them; 

� An explanation of the employer’s evidence; and 

� An opportunity to present their side of the story. 

� This right arises from the 5 th Amendment to the U.S. 

Constitution, which protects citizens from being deprived of 

property without “due process of law” 

� Typically an argument of last resort, for reasons that will 

become apparent

Loudermill Rights (cont’d) 

� Must have a “property interest in continued 

employment” for the right to attach 

� These rights are defined by state law, or rules, understandings 

or policies defining the terms and conditions of the 

employment 

� State statute that prescribes procedures for employee 

termination creates “property right” – Winegar v. Des 

Moines Ind. School District, 20 F.3d 895 (8 th Cir. 1994) 

� County personnel policy that includes statement that “under 

no circumstances” should it be construed as an employment 

contract does not create a “property right” – Lawson v. 

Umatilla County, 139 F.3d 690 (9 th Cir. 1998)


� Gilbert v. Homar, 520 U.S. 924 (1997): police officer 

was not deprived of due process even though he is 

suspended without pay immediately upon being 

charged with a drug felony, because: 

� the risk of erroneous deprivation was minimized where based 

upon third-party decision to file formal charges; 

� “brief” loss of paycheck is not severe deprivation; and 

� Interest of the employer was strong because police officer is 

position of “great public trust and high public visibility”


� Employee entitled to some advance notice of the hearing 

� Not entitled to neutral hearing officer, or to confront or crossexamine 

witnesses – Staples v. City of Milwaukee, 142 F.3d 383 

(7 th Cir. 1998) 

� Weingarten right attaches if there is an exclusive bargaining agent 

� Employee not necessarily entitled to review all of the evidence 

� Doesn’t usually change any minds, but can be useful to establish 

on the record the employer’s reason for discipline/termination 

� This is important, because if the employee later challenges the adverse 

action on grounds that it was unlawful retaliation or discrimination, the 

employer might try to change its “purported” reason to conform to the 

evidence

1 st Amendment Rights 

� Public employers cannot take adverse actions against 

employees because they have associated with a union or 

spoken out on matters of public concern 

� Ask members to inform the local if they are subjected 

to interrogations regarding union activities or 

membership 

� Not necessarily grounds for an immediate lawsuit, but 

could justify a warning letter to the department and will 

establish a record if discipline later occurs

4 th Amendment Rights 

� Under what conditions may a public employer 

conduct a warrantless search of an employee’s 

office, workspace, desk, credenza, locker or 

belongings? 

� O’Connor v. Ortega, 480 U.S. 709 (1987): must 

ask two questions: 

� Does the employee have a reasonable expectation of 

privacy in the area/thing searched? 

� If so, was the search nevertheless “reasonable” 

under the circumstances?

4 th Amendment Rights (cont’d) 

� “reasonable expectation” is govered by employer policies, mutual 

understandings, common sense 

� Video surveillance: dressing room or bathroom vs. common area 

– Helisek v. Dearborn Public Schools, E.D. Mich (March 31, 

2008) 

� Locker with private lock vs. unlocked cabinet - Gossmeyer v. 

McDonald, 128 F.3d 481 (7 th Cir. 1997) 

� Computer searches – U.S. v. Thorn, 375 F.3d 679 (8 th Cir. 2004), 

judgment vac. on other grounds, 543 U.S. 1112 (2005); U.S. v. 

Barrows, 481 F.3d 1246 (10 th Cir. 2007) 

� Text message searches – Quon v. Arch Wireless Operating Co., 

529 F.3d 892 (9 th Cir. 2008) 

� Vehicle monitoring

4 th Amendment Rights (cont’d) 

� “reasonableness” is lesser standard than “probable 

cause” and is based upon the objective of the search, 

and the employer’s “need for supervision, control 

and the efficient operation of the workplace” 

� Search is reasonable when the measures adopted are 

reasonably related to the objectives of the search and 

are not unnecessarily intrusive

Polygraphs/Lie Detectors 

� Federal law prohibiting use of lie detectors in 

the private sectors does not apply to public 

employers 

� Hester v. Milledgeville, 777 F.2d 1492 (11th Cir. 

1985) (city may subject fire fighters to polygraph 

exam designed to ferret out illegal drug use, so 

long as 5th Amendment rights are preserved) 

� Look to state law (handout)

Extreme Situations 

� False Imprisonment 

� Carter v. Aramark Sports, 835 A.2d 262 (Md. 2003) 

� Johnson v. Federal Express, 147 F.Supp. 2d 1268 

(M.D.Ala. 2001) 

� Intentional Infliction of Emotional Harm 

� Mansfield v. AT&T Corp., 747 F.Supp. 1329 

(W.D.Ark. 1990) 

� Custodial Interrogations (6 th Amendment)

Privilege? 

� Only a few states have recognized a common law or statutory 

privilege for communications between non-lawyer union 

representatives and members they are representing, and even 

then it is significantly limited: 

� Illinois: 735 ILCS 5/8-803.5 

� New York: Seelig v. Shephard, 578 N.Y.S.2d 965 (N.Y. Sup.Ct. 1991) 

(finding that commissioner of investigation for NYC cannot compel 

union president, who was not target of investigation, to reveal content of 

discussions with union members regarding job action being investigated) 

� Cook Paint and Varnish Company, 258 N.L.R.B. 1230 (1981) (NLRB 

rules that employer engaged in unfair labor practice by threatening a 

union representative with discipline for refusing to submit to 

interrogation about conversations with a union employee) 

� U.S. Department of Treasury, 38 F.L.R.A. 1300 (1991) (FLRA concludes 

the same for the federal sector)

Privilege? (cont’d) 

� Even where states have protected such 

communications from employer discovery, most have 

not extended this protection beyond the labormanagement 

arena: 

� In re Grand Jury Subpoena, 926 A.2d 280 (N.H. 1991): even 

where state PERB has protected union representatives from 

employer inquiries, such a privilege “may be good against 

management, but it is not good against the world” 

� Potential consequences and ways of handling them

Defamation 

� Defamation is the unprivileged publication of a false statement 

tending to harm the reputationof another person. The statement 

may be either oral (slander) or written (libel). Harm is presumed 

from slanderous statements implying sexual misconduct or the 

commission of a crime. -- BNA Labor and Employment Law, 

IERM 515:101 

� Warning: while representing a member in a workplace 

investigation, you will inevitably hear allegations that, if repeated 

by you, could harm someone’s reputation. In the first chaotic 

moments of such situations, this will probably not be your 

primary concern, but you should keep this in mind.

Defamation (cont’d) 

� Weldy v. Piedmont Airlines, Inc., 985 F.2d 57 (2 nd Cir. 

1993) (supervisor’s false statement to a subordinate that 

a co-worker was being fired for aggravated assault is 

defamatory) 

� Mendez v. M.S. Walker Inc., 528 N.E.2d 891 

(Mass.App.Ct. 1988) (manager’s statement to union 

representative that a janitor had been fired for theft is 

defamatory) 

� Lyons v. National Car Rental, 30 F.3d 240 (1 st Cir. 

1994) (accusation by chief of security that employee 

stole cars was “publication” even when only made to 

another corporate agent in the interrogation room)


� Truth is a defense (but be careful – the implication of the 

statement must be true, and “opinion” isn’t much of a defense) 

� Many states recognize a “qualified privilege” for communications 

arising from workplace investigations 

� But this only applies to communications to those with a legitimate need 

to know the information 

� And it doesn’t protect defamatory statements made with reckless 

disregard for the truth 

� Nipper v. Variety Wholesalers, Inc., 638 So.2d 778 (Ala. 1994) 

(statements made to investigator regarding manager’s conduct were 

protected by qualified privilege when only published to co-workers and 

only to the extent reasonably necessary to investigate complaints)


� Ways to keep out of trouble: 

� Don’t talk about what you learn with anyone who 

doesn’t have an absolute need to know (even though 

everyone will want to know what you know) 

� Give everyone else involved the same advice, 

including the member you are representing

� California: 

“Bill of Rights” Laws 

� Interrogation only at reasonable hour, on duty 

� Employee entitled to know name(s), title of interrogator(s) 

� No more than 2 interrogators at a time, and only for reasonable period of time 

� Protects employee from offensive language or threats of punitive action 

� Protects employee from media inquiries and disclosure of personal information 

� Incorporates Weingarten, Garrity, Miranda, 4 th Amendment protections 

� Employee entitled to recording if recorded; and transcribed copy of nonconfidential 

notes of stenographer; employee can record the interrogations 

� Union representative privilege for noncriminal matters 

� One year limit for completion of investigation 

� Employee has right to review and respond to adverse comments 

� No compulsory lie detector tests 

� Protects employee from financial disclosures 

� Employee has right to inspect personnel file and request corrections

� Florida 


� Employee has right to prior written notice 

� Interrogation only at reasonable time on duty unless 

immediate action is required 

� Interrogation for reasonable length of time 

� Employee shall not be subject to offensive language or 

offered inducement to answer a question 

� If transcript is made, employee can get a copy 

� Employee entitled to know name(s) and titles of 

interrogator(s) 

� Incorporates Weingarten

� Illinois 



� Interrogation only at reasonable time, and on duty whenever 

operational requirements permit 


� Employee shall not be subject to offensive language 

� Employee entitled to transcript 

� Employee entitled to know name(s) and title of 

interrogator(s) 

� Provides right to counsel, incorporates Miranda, Weingarten 

� No compulsory polygraph tests or “any other test 

questioning by means of any chemical substance”

� Louisiana 


� Right to know nature of interrogation at its commencement, along with 

name and authority of interrogator 


� Employee entitled to representative or counsel, or both 

� Representative or counsel may call witnesses on employee’s behalf 

� Employee entitled to transcript or recording 

� No statement may be admitted in criminal proceeding 

� Employee has right to review and respond to adverse comments 

� Protects employee from release of personal information (home address, 

photo, or other “confidential” information) 

� Protects employee from compulsory disclosure of financial information 

� Investigations must be completed within 60 days

� Virginia 



� Interrogation only at reasonable time on duty unless 

immediate action is required 


� Employee shall not be subject to offensive language 

or offered any incentive to answer a question 

� If transcript is made, employee can get a copy 

� Employee entitled to know name(s) and title of 

interrogator(s)

� West Virginia 



� Interrogation only at reasonable time on duty unless immediate action is 

required 

� Interrogation for reasonable length of time, with no more than 3 

interrogators at a time 

� Employee shall not be subject to offensive language, threatened with 

punitive action, or offered inducement to answer a question 

� Employee entitled to transcript or recording upon payment of reasonable 

cost 

� Employee entitled to know name(s) and title of interrogator(s) 

� Employee entitled to counsel upon filing of formal written charges or 

whenever interrogation focuses on matters likely to result in punitive 

action 

� Employee protected from compulsory financial disclosures

Grievance Investigations 

� Under many public sector labor-relations statutes, 

employer has obligation to provide union with 

information, requested in good faith, that is necessary 

for the negotiation and enforcement of the collective 

bargaining agreement 

� Under NLRA, employer commits unfair labor practice by 

refusing to do so (29 U.S.C. 158(a)(5)) 

� County of Cook v. Illinois Local Labor Relations Board, 639 

N.E.2d 187 (Ill.App. 1994) (unfair labor practice under state 

bargaining law for employer to refuse union request for 

investigative report pertaining to employee discipline which 

union was grieving)

Grievance Investigations (cont’d) 

� Of course, actions taken by a union 

representative in representing members as part 

of the grievance procedure are protected 

activities 

� Under NLRA, employer commits unfair labor 

practice by disciplining such employees because of 

such activity – DaimlerChrysler Corp. v. NLRB, 288 

F.3d 434 (D.C.Cir. 2002) 

� Also protected by 1st Amendment

Grievance Investigations (cont’d) 

� In states without public sector bargaining laws, unions 

can use a Freedom of Information Act (FOIA) to 

obtain useful information from the public employer 

� Most statutes require timely responses, but they can 

contain significant exclusions 

� In every FOIA letter: 

� cite the statutory authority 

� demand a response by the timeframes set forth in the statute 

� demand to know if any documents were withheld and, if so, 

under what statutory authority 

� Sample letter (handout)

The IAFF Can Help 

� Grievance Arbitration Manual 

� Steward’s Manual 

� Guidance from the District Vice President 

� District Field Service Representatives 

� Assistance from the IAFF Legal Department 

� Letter from the General President to your employer 

� Assistance from the IAFF Public Relations Department 

� Guardian Policy 

� Emergency Disputes Fund Policy

Tales from the Field

� This is a new course, so PLEASE FILL OUT 

AN EVALUATION and let me know how it 

can be made better. 

� Thanks for your attention! 

Kurt Rumsfeld 

IAFF Legal Counsel 

Legal Department: (202) 824-1508

cont'd - Iowa Professional Fire Fighters

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