I - Right to Representation at a Hearing
     A - Federal Courts
     Federal court issues an injunction preventing management from introducing a use-of-force incident report in the disciplinary hearing. Superiors required the involved officer to complete the report without the presence of the union attorney. Court put compelled reports in the same category as formalized IA interviews. Watson v. Co. of Riverside, 976 F. Supp. 951, 1997 U.S.Dist. Lexis 13797 (C.D.Cal.). [1998 FP 3-4]
     Federal appeals court concludes that a terminated employee was not entitled to have his own attorney present at the grievance arbitration hearing. Garcia v. Zenith Electronics, 58 F.3d 1171 (7th Cir. 1995).
     Officer was not entitled to assistance of counsel at a predetermination hearing. Panozzo v. Rhoads, 905 F.2d 135 (7th Cir. 1990).

     B- State Courts
     "A random drug test is a safety measure that protects citizens from the ill effects of a drug or alcohol imbiber who is responsible for a safety sensitive position." While the grievant had a right to the presence of a union representative "it is not reasonable that the City, rather than the Union, handle the logistics of getting a representative to the site." City of Cleveland and Munic. C.E.O., AAA #53-390-00505-07, 125 LA (BNA) 431 (Skulina, 2008).
     Illinois Supreme Court upholds the termination of a sergeant who refused to speak with the sheriff without her union rep. present. Justices conclude that Weingarten is not applicable because the interview was "informal" and nondisciplinary. Ehlers v. Jackson Co., 183 Ill. 2d 83, 697 N.E.2d 717, 1998 Ill. Lexis 916. [1998 FP 117]
     A police officer in NY is not entitled to assistance of counsel in administrative proceedings. Alston v. NYC Transit Auth., 588 N.Y.S.2d 419 (A.D. 1992), citing Brown v. Lavine, 333 N.E.2d 374.
     Accused not entitled to two attorneys, a continuance, or discovery of investigative reports. Stouffer v. Cmsr. of Penn. State Police, 464 A.2d 595 (Pa. Cmwlth. 1983).
     Demotion set aside because board denied lieutenant assistance of counsel and right to cross-examine. Garrett v. N. Babylon Vol. Fire Co., 433 N.Y.S.2d 218 (A.D. 1980).
     No right of counsel or record at peer review panel prior to full disciplinary de novo hearing. Grisell v. Consol. City of Indianapolis, 425 N.E.2d 247 (Ind.App. 1981).
     Hearing cannot be denied employee merely because he insists on presence of private counsel. Rapacki v. Bd. of Fire Cmsnrs. of Uniondale, 427 N.Y.S.2d 478 (A.D. 1980). California recognizes right to representation by union representative at disciplinary hearing. Civil Serv. Assn. L-400 v. City of San Francisco, 586 P.2d 162 (Cal. 1978).
     Fire Dept. ambulance driver's discharge set aside due to absence of counsel; civil service commission ordered to grant new hearing on due process grounds. Woods v. Civil Serv. Commission of the City of Los Angeles, 119 Cal.Rptr. 175 (Cal.App. 1975).

     II - Right to Representation While Interviewed
     A - General (non-Weingarten) Rights
     Interrogated department member, suspected of misconduct, is not entitled to legal counsel at disciplinary interview. Wilson v. Swing, 463 F.Supp. 555 (M.D. N.C. 1978).
     Appellate court upholds right to discipline an officer who refused to answer a superior's job-related questions without first consulting with legal counsel. Brougham v. City of Normandy, 812 S.W.2d 919 (Mo.App. 1991). [1992 FP 132-3]
     Chief may lawfully require police officers involved in fatal shootings to write incident reports before they have consulted with an association attorney. City has strong, compelling interest in obtaining prompt, accurate and "unvarnished" reports of fatal shootings for training purposes. Ward v. City of Portland, 857 F.2d 1373 [the opinion which appeared in the paperbound volumes “advance sheets” was modified and portions were withdrawn] (9th Cir. 9/29/88), reversing 658 F.2d 1272 (9th Cir. 1981). Editor's Note: Unfortunately the court inadequately addressed the issue of whether an officer in an agency that recognizes his right to counsel during an internal investigation would also have that right before completing a use of force or major incident report. This issue has never been fully resolved.
     In states where employee has right of counsel during interview, lawyer is entitled to object and consult with client. Nichols v. Baltimore Police Dept., 455 A.2d 446.
     N.Y. courts have split on right to counsel at a disciplinary interrogation. A trial judge found an officer was deprived of his right of due process when he was ordered to give a statement at a time when his attorney was not available. May v. Shaw, 396 N.Y.S.2d 258 (A.D. 1977). In another case, an appellate panel ruled 3-to-2 that there was no right to an attorney during the interrogation process, even though a collectively bargained agreement granted that right. Donofrio v. Hastings, 388 N.Y.S.2d 779 (A.D. 1976).
     Dismissal because chief consulted with his attorney was improper; reinstatement and back pay awarded. Lee v. Ridgdill, 444 F.Supp. 44 (M.D. Fla. 1977).
     Arbitrator rules that an employer was not obligated to furnish legal counsel to a police officer accused of excessive force, during his interview with management. While the contract required management to furnish employees with legal representation in all "legal proceedings," the contract excepted "internal university proceedings." Univ. Mich. and Mich. Assn. of Police, 103 LA (BNA) 401 (Daniel, 1994). {N/R}
     Appellate court upholds right to discipline an officer who refused to answer a superior's job-related questions without first consulting with legal counsel. Brougham v. City of Normandy, 812 S.W.2d 919 (Mo.App. 1991).

     B - Weingarten Rights
     Michigan arbitrator extends Weingarten Rights to a written report that was requested by a supervisor. Officers need not assert their rights; management must inform subordinates of their right to representation if the inquiry can lead to discipline. Lansing (City of) and Capitol City Post 141, 106 LA (BNA) 761 (Ellmann, 1996).
     Arbitrator concludes that the Weingarten decision requires management to delay an employee interview until a labor rep. is present, whenever the employee "reasonably believes" that disciplinary action might be taken. The fact that management chooses to characterize an interview as "nondisciplinary" is not controlling. Manchester (City of) and Manchester Police Patrolmen's Assn., AAA 11-390-01552-93 (Greenbaum, 1994). {Our Ref. 5569}
     Michigan appellate court holds that Weingarten applies: Wayne-Westland Educ. Assn. v. W.-W Comm. Schools, 439 N.W.2d 372 (Mich.App. 1989), appeal den. 433 Mich. 908 (1990).
     The Weingarten decision protects members of a bargaining unit, and does not protect nonunion members, unless the bargaining agreement specifically includes them. That decision said "when no union is present, however, the imposition of Weingarten rights wrecks havoc..." An employer does not have to deal collectively with an otherwise unrepresented worker. Sears R. & Co. and Intern. Union E.R.M.W., 274 NLRB 230, 1985 NLRB Lexis 745.
     Iowa holds that public employees are entitled to a union rep's presence at a disciplinary interview or interrogation. City of Marion v. Weitenhagen, 361 N.W.2d 323 (Iowa App. 1984).
     New Hampshire Public Employment Labor Relations Commission has adopted Weingarten rights for public employees. NHPELRB Decisions 92-73, 92-194 (1992).
     New York and West Virginia have declined to follow Weingarten. Sperling v. Helsby, 400 N.Y.S.2d 821, 60 A.D.2d 559 (1977); Swiger v. Civil Serv. Cmsn., 365 S.E.2d 797, 179 W.Va. 133 (1987).
     Weingarten rule limited to union members; nonunion workers not entitled to employee rep at disciplinary interview. Sears, Roebuck and Co. and Intern. Union of Elec. Radio and Mach. Wrkrs., 274 NLRB 230, 1985 NLRB Lexis 745, 118 LRRM (BNA) 1329. Trial judge holds that officers may consult with union reps before completing a shooting report; prior policy continued. Long Beach P.O.A. v. City of Long Beach, L.A. Daily J. (11/10/82).
     Florida reaffirms that Weingarten applies to public employees. City of Clearwater v. Lewis, 404 So.2d 1156 (Fla.App. 1981).
     Pennsylvania applies Weingarten Decision; officer has right to union representation during disciplinary interrogation. NLRB v. Weingarten, 95 S.Ct. 972 (1975); Penn. Labor Rltns. Bd. v. Shaler Twp., Case #PF-C-93-W (1980).
     Federal appeals court reaffirms Weingarten holding and extends it to counseling sessions about the employee's job performance, which was a "preliminary stage in the imposition of discipline." Lewis v. NLRB, 587 F.2d 403 (9th Cir. 1978).
     Calif. follows Weingarten decision. Robinson v. St. Persnl. Bd., 97 Cal.App.3d 994, 159 Cal.Rptr. 222 (1979).
     Trial judge holds that officers may consult with union reps before completing a shooting report; prior
     policy continued. Long Beach P.O.A. v. City of Long Beach, L.A. Daily Journal (11/10/82).
     Federal appeals court reaffirms Weingarten holding and extends it to counseling sessions about the employee's job performance, which was a "preliminary stage in the imposition of discipline." Lewis v. NLRB, 587 F.2d 403 (9th Cir. 1978).
     Calif. follows Weingarten decision. Robinson v. St. Persnl. Bd., 97 Cal.App.3d 994, 159 Cal.Rptr. 222 (1979).
     Right to representation by union representative upheld in Florida. Seitz v. Duval Co. Sch. Bd., Fla. PERC Case #8H-CA-764-1015, G.E.R.R. 767:14 (1978).
     Landmark Case: Supreme Court concludes that a member of a bargaining unit is entitled to representation at a disciplinary interview. NLRB v. Weingarten, 420 U.S. 251, 95 S.Ct. 959 (1975).