Fireman's Disciplinary Act

Weingarten Rights

Loudermill Rights

Just Cause

Fireman’s Disciplinary Act

(50 ILCS 745/) Firemen’s Disciplinary Act.
(50 ILCS 745/1) (from Ch. 85, par. 2501)
Sec. 1. This Act shall be known and may be cited as the “Firemen’s Disciplinary Act”.
(Source: P.A. 83-783.)

(50 ILCS 745/2) (from Ch. 85, par. 2502)
Sec. 2. Definitions. For the purposes of this Act, unless clearly required otherwise, the terms defined in this Section have the meaning ascribed herein:
(a) “Fireman” means a person who is a “firefighter” or “fireman” as defined in Sections 4-106 or 6-106 of the Illinois Pension Code, a paramedic employed by a unit of local government, or an EMT, emergency medical technician-intermediate (EMT-I), or advanced emergency medical technician (A-EMT) employed by a unit of local government, and includes a person who is an “employee” as defined in Section 15-107 of the Illinois Pension Code and whose primary duties relate to firefighting.
(b) “Informal inquiry” means a meeting by supervisory or command personnel with a fireman upon whom an allegation of misconduct has come to the attention of such supervisory or command personnel, the purpose of which meeting is to mediate a citizen complaint or discuss the facts to determine whether a formal investigation should be commenced.
(c) “Formal investigation” means the process of investigation ordered by a commanding officer during which the questioning of a fireman is intended to gather evidence of misconduct which may be the basis for filing charges seeking his or her removal, discharge, or suspension from duty in excess of 24 duty hours.
(d) “Interrogation” means the questioning of a fireman pursuant to an investigation initiated by the respective State or local governmental unit in connection with an alleged violation of such unit’s rules which may be the basis for filing charges seeking his or her suspension, removal, or discharge. The term does not include questioning as part of an informal inquiry as to allegations of misconduct relating to minor infractions of agency rules which may be noted on the fireman’s record but which may not in themselves result in removal, discharge, or suspension from duty in excess of 24 duty hours.
(e) “Administrative proceeding” means any non-judicial hearing which is authorized to recommend, approve or order the suspension, removal, or discharge of a fireman.
(Source: P.A. 98-973, eff. 8-15-14.)

(50 ILCS 745/3) (from Ch. 85, par. 2503)
Sec. 3. Whenever a fireman is subjected to an interrogation within the meaning of this Act, the interrogation shall be conducted pursuant to Sections 3.1 through 3.11 of this Act.
(Source: P.A. 83-783.)

(50 ILCS 745/3.1) (from Ch. 85, par. 2504)
Sec. 3.1. The interrogation shall take place at the facility to which the investigating officer is assigned, or at the facility which has jurisdiction over the place where the incident under investigation allegedly occurred, as designated by the investigating officer.
(Source: P.A. 83-783.)

(50 ILCS 745/3.2) (from Ch. 85, par. 2505)
Sec. 3.2. No fireman shall be subjected to questioning in relation to an allegation of misconduct without first being informed in writing of the allegations and whether the allegations, if proven, involve minor infractions or may result in removal, discharge, or suspension from duty in excess of 24 duty hours. If an administrative proceeding is instituted, the fireman shall be informed beforehand of the names of all complainants and all information necessary to reasonably apprise the fireman of the nature of the charges and the preparation of a defense.
(Source: P.A. 94-188, eff. 7-12-05.)

(50 ILCS 745/3.3) (from Ch. 85, par. 2506)
Sec. 3.3. All interrogations shall be conducted at a reasonable time of day. Whenever the nature of the alleged incident and operational requirements permit, interrogations shall be conducted during the time when the fireman is on duty.
(Source: P.A. 83-783.)

(50 ILCS 745/3.4) (from Ch. 85, par. 2507)
Sec. 3.4. The fireman under investigation shall be informed of the name, rank and unit or command of the officer in charge of the investigation, the interrogators, and all persons present during any interrogation except at a public administrative proceeding.
(Source: P.A. 83-783.)

(50 ILCS 745/3.5) (from Ch. 85, par. 2508)
Sec. 3.5. Interrogation sessions shall be of reasonable duration and shall permit the fireman interrogated reasonable periods for rest and personal necessities.
(Source: P.A. 83-783.)

(50 ILCS 745/3.6) (from Ch. 85, par. 2509)
Sec. 3.6. The fireman being interrogated shall not be subjected to professional or personal abuse, including offensive language.
(Source: P.A. 83-783.)

(50 ILCS 745/3.7) (from Ch. 85, par. 2510)
Sec. 3.7. A complete record of any interrogation shall be made, and a complete transcript or copy shall be made available to the fireman under investigation without charge and without undue delay. Such record may be electronically recorded.
(Source: P.A. 83-783.)

(50 ILCS 745/3.8) (from Ch. 85, par. 2511)
Sec. 3.8. No fireman shall be interrogated without first being advised in writing that admissions made in the course of the interrogation may be used as evidence of misconduct or as the basis for charges seeking suspension, removal, or discharge; and without first being advised in writing that he or she has the right to counsel of his or her choosing who may be present to advise him or her at any stage of any interrogation.
(Source: P.A. 83-783.)

(50 ILCS 745/3.9) (from Ch. 85, par. 2512)
Sec. 3.9. The fireman under investigation shall have the right to be represented by counsel of his or her choosing and may request counsel at any time before or during interrogation. When such request for counsel is made, no interrogation shall proceed until reasonable time and opportunity are provided the fireman to obtain counsel.
If a collective bargaining agreement requires the presence of a representative of the collective bargaining unit during investigations, such representative shall be present during the interrogation, unless this requirement is waived by the fireman being interrogated.
(Source: P.A. 83-783.)

(50 ILCS 745/3.10) (from Ch. 85, par. 2513)
Sec. 3.10. Admissions or confessions obtained during the course of any interrogation not conducted in accordance with this Act may not be utilized in any subsequent disciplinary proceeding against the fireman.
(Source: P.A. 83-783.)

(50 ILCS 745/3.11) (from Ch. 85, par. 2514)
Sec. 3.11. In the course of any interrogation no fireman shall be required to submit to a polygraph test, or any other test questioning by means of any chemical substance, except with the fireman’s express written consent. Refusal to submit to such tests shall not result in any disciplinary action nor shall such refusal be made part of his or her record.
(Source: P.A. 83-783.)

(50 ILCS 745/4) (from Ch. 85, par. 2515)
Sec. 4. The rights of firemen in disciplinary procedures set forth under this Act shall not diminish the rights and privileges of firemen that are guaranteed to all citizens by the Constitution and laws of the United States and of the State of Illinois.
(Source: P.A. 83-783.)

(50 ILCS 745/5) (from Ch. 85, par. 2516)
Sec. 5. This Act does not apply to any fireman charged with violating any provisions of the Criminal Code of 1961, the Criminal Code of 2012, or any other federal, State, or local criminal law.
(Source: P.A. 97-1150, eff. 1-25-13.)

(50 ILCS 745/6) (from Ch. 85, par. 2517)
Sec. 6. The provisions of this Act apply only to the extent there is no collective bargaining agreement currently in effect dealing with the subject matter of this Act.
(Source: P.A. 83-783.)

(50 ILCS 745/7) (from Ch. 85, par. 2518)
Sec. 7. No fireman shall be discharged, disciplined, demoted, denied promotion or seniority, transferred, reassigned or otherwise discriminated against in regard to his or her employment, or be threatened with any such treatment as retaliation for or by reason of his or her exercise of the rights granted by this Act.
(Source: P.A. 83-783.)

Illinois Fireman’s Disciplinary Act

Weingarten Rights

THE WEINGARTEN RULE
An employee’s right to representation

WEINGARTEN RIGHTS
An employee may be represented by the union at an investigatory interview with his or her supervisor when the
employee reasonably believes that the interview may lead to a disciplinary action.

U.S. Supreme Court ruling:
The rights of employees to the presence of union representatives during investigatory interviews was announced by the U.S. Supreme Court in 1975 in NLRB v. J. Weingarten, Inc. Since that case involved a clerk being investigated by the Weingarten Company, these rights have become known as Weingarten Rights.

What is an investigatory interview?
Employees have Weingarten rights only during investigatory interviews. An investigatory interview occurs when a supervisor questions an employee to obtain information which could be used as a basis for discipline or asks an employee to defend his or her conduct. If an employee has a reasonable belief that discipline or other adverse
consequences may result from what he or she says, the employee has a right to request union representation.

Investigatory interviews usually relate to subjects such as:
absenteeism, drinking, fighting, poor attitude, violation of safety rules, accidents, drugs, insubordination, sabotage, work performance, damage to state property, falsification of records, lateness, theft, violation of work.

Weingarten rules:
Under the Supreme Court’s Weingarten decision, when an investigatory interview occurs, the following rules apply:
RULE 1
The employee must make a clear request for union representation before or during the interview. The employee
cannot be punished for making this request.

RULE 2
After the employee makes the request, the employer must choose from among three options. The employer must:
Grant the request and delay questioning until the union representative arrives and has a chance to consult privately with the employee; or Deny the request and end the interview immediately; or Give the employee a choice of: (1) having the interview without representation or (2) ending the interview.

RULE 3
If the supervisor denies the request for union representation and continues to ask questions, he or she commits an unfair labor practice and the employee has the right to refuse to answer. The supervisor cannot discipline the
employee for such a refusal.

Rights of Stewards
Supervisors often assert that the only role of a steward at an investigatory interview is to observe the discussion, i.e., to be a silent witness. The Supreme Court, however, clearly acknowledged a steward’s right to assist and counsel workers during the interview.

Decided cases establish the following procedures:

1. When the steward arrives, the supervisor must inform the steward of the subject matter of the
interview; i.e., the type of conduct for which discipline is being considered (theft, lateness, drugs, etc.).
2. The steward must be allowed to take the worker aside for a private pre-interview conference before questioning begins.
3. The steward must be allowed to speak during the interview. The steward, however, does not have the right to bargain over the purpose of the interview.
4. The steward can request that the supervisor clarify a question so the worker can understand what is being asked.
5. After a question is asked, the steward can give advice on how to answer.
6. When the questioning ends, the steward can provide information to the supervisor.

It must be emphasized that if the Weingarten rights are complied with, stewards have no right to tell workers not to answer questions or to give false answers.

Loudermill Rights

A U.S. Supreme Court decision somewhat similar to Weingarten occurred in 1985, with the case of Cleveland Board of Education vs. Loudermill. This decision established what have come to be called “Loudermill Rights” for public employees.

Loudermill Rights apply to incidents of involuntary termination. Prior to being terminated, “the…tenured public employee is entitled to oral or written no tice of the charges against him (or her), an explanation of the employer’s evidence, and an opportunity to present his (or her) side of the story.”

Unlike Weingarten, the employer has an obligation to inform the employees of his/her Loudermill Rights. The employee has the right to speak or not to speak at the Loudermill (or “pre-disciplinary”) hearing. Also, the employee has a right to union representation, and the union representative may speak on behalf of the employee.

If the employee chooses not to attend the Loudermill (or “pre- disciplinary”) hearing, the employer may proceed with termination.

Just Cause

A basic principle in discipline cases is that management must have “just cause” to impose the discipline. Arbitrators’ decisions over the years have resulted in a kind of measuring stick — known as the “Seven Tests of Just Cause’ — that can be applied to discipline cases. The just cause standard is contained in the following seven questions:

  1. Was the employee adequately warned of the probable consequences of the employee’s conduct?
  2. Was the employer’s rule or order reasonably related to the efficient and safe operation of the job function?
  3. Did management investigate before administering the discipline?
  4. Was management’s investigation fair and objective?
  5. Did the investigation produce substantial evidence or proof that the employee was guilty of the offense?
  6. Has the employer applied its rules, orders and penalties evenly and without discrimination?
  7. Was the amount of discipline reasonably related to the seriousness of the offense and the employee’s past service and record? (Did the “punishment fit the crime?)

If the answer to one or more of these questions is “no,” the union can argue that management did not have just cause to take the disciplinary action.