Sunday, September 14, 2014

Weingarten and criminal investigations of employees

This is a subject addressed in two recent cases.

In Prince George's County v. Prince George's County Police Civilian Employees Association the Maryland Court of Special Appeals considered whether it was a violation of public policy for an arbitrator to conclude that the the County was obligated to inform an employee of his right to union representation "during an investigatory interview, when his  employer was conducting a criminal investigation."

Grievant, a civilian employee of the police department,was initially requested to meet with the Department's Criminal Investigation Division for an interview in connection with the investigation of a missing weapon. As that investigation progressed, Grievant was also asked about allegations he had impersonated a police officer, had engaged in the unauthorized use of the police radio while operating one of the Department's undercover vehicles, and improperly activated emergency equipment. A referral was made to the Department's Internal Affairs Division which ultimately issued a recommendation that greivant's employment be terminated. The recommendation was followed, and the Union pursued a grievance to arbitration over the discipline.

The arbitrator upheld the grievance on several grounds, one of which was that the Department had denied grievant his Weingarten rights during the interview.The Department sought to set aside the award, arguing that it violated public policy when it determined that grievant was entitled to a union representative during  a criminal investigation. The lower court confirmed the award, but the Court of Appeals reversed. Adopting reasoning similar to that adopted by courts in Illinois and New York, the Court concluded: 

As in Illinois State Police and City of New York, the arbitrator's award here and the circuit court's decision to uphold the arbitrator's award constrains the ability of the County's police department to conduct criminal investigations and interrogations of their union members. 
The serious crime of theft of a police officer's service weapon and impersonating a police officer cannot give way to an employee's Weingarten rights. To do so, as held by our sister jurisdictions, would interfere with the police department's ability to investigate crimes and violate the public policy of effective law enforcement. The public safety exception applies to this case because [Grievant] was being interrogated about several crimes by his police department employer rather than merely an employment issue and we thus reverse the decision of the circuit court affirming the arbitrator's decision.

Because it could not determine whether the Arbitrator would have overturned the termination on other grounds alone, it  vacated the award and remanded the dispute to a new arbitrator.

In contrast, the New Jersey Appellate Division, in  New Jersey Transit Bus Operations, Inc. v. ATU New Jersey State Council, affirmed a decision of the Public Employment Relations Commission (PERC) that denied a request by N.J. Transit to restrain arbitration of a claim that it had denied an employee his Weingarten rights during what the employer claimed was a criminal investigation by its internal police department.

Grievant had been dismissed for allegedly taking money from a fare box of a NJ Transit bus. He was interviewed at the worksite by officers of the NJ Transit Police Department. The Union claimed he was denied union representation during that interview. The employer filed a scope of negotiations petition seeking a determination that the Union could not rely on the alleged denial of union representation to exclude admissions made during the interview.

PERC rejected this request, and the Appellate Division affirmed. It quoted with approval the following excerpt from PERC's decision:

We reject NJT's argument that Weingarten rights never apply to interviews conducted by NJTPD because to allow such representation would frustrate the effectiveness of criminal interviews. While NJT asserts that NJTPD is akin to a municipal or State police force, NJTPD's jurisdiction is limited to "police and security responsibilities over all locations and services owned, operated, or managed by the [NJT] corporation and its subsidiaries." N.J.S.A. 27:25-15.1(a). The nature of the investigatory interview may have been criminal, but it resulted in an administrative termination of the employee's job. An investigatory interview conducted by the police arm of a public employer, as opposed to the public employer itself, is not, standing alone, a ground to render Weingarten protections inapplicable. In re Carroll, 339 N.J. Super. 429 (App. Div. 2001) (even though sheriff's officer was granted use immunity during an internal criminal investigation interview, he should have been allowed to consult with attorney and union representative); see also Dep't of Human Services, P.E.R.C. No. 89-16, 14 NJPER 563 (¶19236 1998) (finding a violation of the New Jersey Employer-Employee Relations Act when an employee interviewed by Human Services police was denied union representation where the employee had a reasonable basis to believe the information gathered at the interview was available for purposes of administrative discipline); see also U.S. Postal Service, 241 N.L.R.B. 141, 100 LRRM 1520 (1979) (finding that an employee interviewed by Postal Service inspectors and ultimately disciplined based on evidence obtained as a result of the criminal investigation was entitled to union representation). 

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