New York Public Employment Relations Board
See City of Rochester v. Public Empl. Rel. Bd. and Rochester Police Locust Club, #TP 04-01759, 15 A.D.3d 922, 790 N.Y.S.2d 788, 2005 N.Y. App. Div. Lexis 1068 (App. Div. 4th Dept.); review denied, 2005 N.Y. Lexis 1120 (N.Y. May, 2005). The case is discussed in the July, 2005 issue of this publication.
In the Matter of
Rochester Police Locust Club, Inc.
City of Rochester
Case Nos. U-23938, U-24081
37 NYPER (LRP) ¶3015
2004 NYPER (LRP) Lexis 80
May 26, 2004 Decided
Decision and Order
These cases come to us on exceptions filed by the City of Rochester (City) to a decision of an Administrative Law Judge (ALJ) finding that the City violated § 209-a.1(a) of the Public Employees’ Fair Employment Act (Act) when it denied police officers represented by the Rochester Police Locust Club, Inc. (Locust Club), who were under criminal investigation, access to a Locust Club representative.
The charge filed by the Locust Club in U-23938 alleges that the City denied a request by Officer McHale for union representation during a criminal investigation conducted by the City following an incident on September 25, 2002, when Officer McHale discharged his weapon. The charge filed by the Locust Club in Case U-24081 alleges that the City denied a request by Officer Snow on February 14, 2003, for representation by a Locust Club representative while he was under investigation for discharging his weapon during his response to a robbery in progress at a home.
The charges were consolidated for hearing and decision. The ALJ found that the City violated the Act in both cases when it denied requests by Officers McHale and Snow for union representation and when it denied the Locust Club access to the officers during the criminal investigations conducted by the City into the underlying incidents.
The ALJ relied upon the Board’s recent decision in New York City Transit Authority (NYCTA), n1 in which we found that, when union representation has been requested, an employee covered by the Act has a statutory right to refuse to submit without union representation to an investigatory interview which he or she reasonably fears may result in discipline.
In NYCTA, we found the Act made applicable to public employees the decision of the U.S. Supreme Court in National Labor Relations Board v. Weingarten (Weingarten), n2 holding that . . .it is a serious violation of the employee’s individual right to engage in concerted activity by seeking the assistance of his statutory representative if the employer denies the employee’s request and compels the employee to appear unassisted at an interview that may put his job security in jeopardy.
Such a dilution of the employee’s right to act collectively to protect his job interests is, in our view, unwarranted interference with his right to insist on concerted protection, rather than individual self-protection, against possible adverse employer action. n3
The City excepts to the ALJ’s decision on the grounds that there is no right to union representation at a criminal investigation and that public policy considerations preclude union representation at criminal investigations. The Locust Club supports the ALJ’s decision. Based upon our review of the record and our consideration of the parties’ arguments, we affirm the decision of the ALJ. Facts
The facts are few and are not in dispute, the parties having stipulated to a record upon which the ALJ based her decision. n4 The City defines a situation in which a police officer discharges a weapon as a “critical incident”. When such an incident occurs, the City’s Police Department (Department) conducts two separate but parallel investigations. One is conducted by the Professional Standards Section (internal affairs) and is used to decide whether departmental charges should be filed and discipline imposed.
Article 20 of the parties’ collective bargaining agreement covers this procedure and provides for the right of union representation during any investigatory interviews upon the request of the officer. The Department also conducts a criminal investigation of critical incidents. Such investigations are conducted by the Critical Incident Investigation Team.
As part of these investigations, it is the Department’s practice to separate suspects and witnesses from each other and any third parties not actively involved in conducting the investigations. In both the critical incidents in-issue here, the police officers requested, and were denied by the Department, representation by the Locust Club prior to and during the investigatory interviews conducted by the Critical Incident Investigation Team.
In Officer McHale’s case, the Locust Club’s attorney presented an Order to Show Cause enjoining the Department from excluding union representatives or attorneys from interviews of unit members pending a hearing on the show cause application. Officer McHale asserted his right to remain silent when asked for a statement during the criminal investigation. Officer Snow was denied union representation during his criminal investigation interview. He asserted his constitutional right to counsel and, after consultation with the Locust Club’s attorney, he invoked his constitutional right to remain silent. Both officers were afforded representation by the Locust Club during their interviews by the Professional Standards Section. Discussion
It was only in 2002 when the issue of the right of union representation during an investigatory interview was first presented squarely to the Board. In our decision in NYCTA, we determined that the rights set forth in Weingarten were applicable to public employees covered by the Act. As we stated in NYCTA: “We here find that an employee has the right to union representation during an investigatory interview which may reasonably lead to discipline.” n5
The question presented in the instant case is whether the right to union representation extends to a criminal investigation interview of a police officer related to actions taken by the police officer in the performance of his or her duties as a police officer. n6 We find that it does. The City relies on numerous decisions of the Board which found that demands relating to the conduct of criminal investigations by an employer are nonmandatory subjects of negotiations in support of its assertion that the right to union representation does not extend to criminal investigations. n7 We reject the City’s argument on this point.
First, as correctly noted by the ALJ, in none of those decisions was union representation a deciding factor in the determination on the negotiability of the demand. Second, as we noted in City of Buffalo, n8 employees have the protected statutory right to have union representation with respect to any issue affecting their employment relationship, whether or not that issue embraces a mandatory subject of negotiation. That request for and receipt of union representation constitutes participation in a union, a right specifically protected by § 202 of the Act.
That the procedures for the conduct of criminal investigations may involve nonmandatory subjects of negotiations does not compel a conclusion that a police officer has no right to union representation during the conduct of an investigatory interview that is part of a criminal investigation into actions taken by the police officer as a police officer. While we have recognized that it is an inherent governmental function of a police department to investigate possible criminal activity within its jurisdiction, n9 the department’s right to conduct such investigations is limited in several areas by a variety of constitutional and statutory restrictions; for example, the rights of suspects articulated by the Supreme Court in Miranda v. Arizona. n10
The right to union representation at a criminal investigation interview into the performance by a police officer of his or her duties is no more intrusive than the right to counsel afforded to every citizen pursuant to Miranda. The City’s public policy argument that criminal investigations not be impeded by the involvement of a union representative is not without merit. However, the argument ignores the strictures placed by the Supreme Court in Weingarten upon the actions of a union representative before and during the investigatory interview.
In Weingarten, the Court held that: . . .exercise of the right may not interfere with legitimate employer prerogatives. The employer has no obligation to justify his refusal to allow union representation, and despite refusal, the employer is free to carry on his inquiry without interviewing the employee, and thus leave to the employee the choice between having an interview unaccompanied by his representative, or having no interview and forgoing any benefits that might be derived from one. n11
The representative is there to assist the employee but not to negotiate with the employer or interfere in any way with the progress of the investigation. The employer is free to insist on hearing the employee’s own account of the matter under investigation. n12 The integrity of the investigation is not compromised by the presence of a union representative any more than it is compromised by the presence of the police officer’s attorney, which the City concedes is required by Miranda.
The holding in Weingarten is not limited to only a disciplinary interview. The language of the Court makes its holding applicable to “an investigatory interview which the employee reasonably believed might result in disciplinary action.” n13
We find that a police officer who is subject to a criminal investigation interview into the performance of his or her duties which may constitute criminal behavior has a reasonable belief that discipline will follow. The City notes in its pleadings that police officers are only performing their police officer functions when they answer questions during a Critical Incident Investigation interview. n14
The failure to so perform police officer functions could lead a police officer to reasonably conclude that discipline would follow. As Officers McHale and Snow both requested union representation before their Critical Incident Investigation interviews and such requests were denied by the City and the City denied representatives of the Locust Club access to the police officers after the officers requested representation, we find that the City violated § 209-a.1(a) of the Act. The City’s exceptions are denied and the ALJ’s decision is, therefore, affirmed.
IT IS, THEREFORE, ORDERED that the City:
1.Cease and desist from refusing to permit a Locust Club representative to be present when a member requests representation at criminal investigations conducted by the Critical Incident Team relating to possible criminal conduct of a member arising from the performance of his or her job.
2.Cease and desist from refusing to permit a Locust Club representative to confer with members when a member requests representation prior to a criminal investigation conducted by the Critical Incident Team relating to possible criminal conduct of a member arising from the performance of his or her job. 3.Sign and post the attached notice at all locations normally used to communicate with members of the Locust Club.
Michael R. Cuevas, Chairman
1 35 PERB 3029 (2002), confirmed, 196 Misc2d 532, 36 PERB 7009 (Sup. Ct. Kings County 2003) (appeal pending).
2 420 US 251 (1975).
3 Id. at 257.
4 37 PERB 4507 ( 2004) .
5 Supra, note 1 at 3082.
6 We do not reach the issue of a police officer’s rights to union representation during a criminal investigation that is not related to actions taken by the police officer as part of his or her employment.
7 City of White Plains, 33 PERB 3051 (2000); Schenectady PBA, 21 PERB 3022 (1988); PBA of Newburgh, New York, Inc., 18 PERB 3065 (1985) petition dismissed, 19 PERB 7005 (sup. Ct. Albany County 1986); Police Ass’n of the City of Mt. Vernon, Inc., 13 PERB 3071 (1980); PBA of the City of White Plains, Inc., 12 PERB 3046 (1979); City of Rochester, 12 PERB 3010 (1979); Town of Haverstraw, 11 PERB 3109 (1978) (later history omitted); PBA of Hempstead, N.Y., Inc., 11 PERB 3072 (1978); Police Ass’n of New Rochelle, Inc., 10 PERB 3042 (1977); Troy Uniformed Firefighters Ass’n, Local 2304, IAFF, 10 PERB 3015 (1977); Scarsdale PBA, Inc., 8 PERB 3075 (1975).
8 30 PERB 3021, at 3048 (1997).
9 See Police Ass’n of New Rochelle, 10 PERB 3042 (1977).
10 384 US 436 (1966).
11 Supra, note 2 at 259.
12 See, Commonwealth of Pennsylvania (Dep’t of Corrections, Retreat SCI), 34 PPER 140 (2003), holding that the permissible extent of participation of a Weingarten representative is somewhere between mandatory silence and adversarial confrontation.
13 Supra, note 2 at 252.
14 Answer (U-23938), p. 6.
New York Public Employment Relations Board
37 NYPER (LRP)¶4507
2004 NYPER (LRP) Lexis 10
January 28, 2004 Decided
Decision of Administrative Law Judge
On December 23, 2002, the Rochester Police Locust Club, Inc. (Locust Club) filed an improper practice charge in Case U-23938 alleging, as amended, that the City of Rochester (City) violated § 209-a.1(a) of the Public Employees’ Fair Employment Act (Act) when, on September 26, 2002, it denied a Locust Club member under investigation for possible criminal charges arising out of the performance of his job, access to a union representative.
On February 24, 2003, the Locust Club filed an improper practice charge in Case U-24081 alleging that the City violated § 209-a.1(a) of the Act when, on February 14, 2003, it denied a Locust Club member under investigation for possible criminal charges arising out of the performance of his job access to a union representative. The City, in separate answers to the charges, denied that its conduct violated the Act and pled by way of affirmative defense that the investigations were criminal in nature and that there is no right to union representation in those circumstances.
The charges were consolidated for hearing and, on March 24, 2003, the parties entered into a stipulated record. Both parties were present and represented and both filed briefs. The record in this case consists of the charges, the answers, a copy of the collective bargaining agreement (CBA) between the City and the Locust Club covering the period July 1, 1999, through June 30, 2001, an Order to Show Cause issued September 23, 2002, by Justice Kenneth R. Fisher, Justice of the Supreme Court, Monroe County, and a Decision and Order issued by Justice Fisher on October 8, 2002.
The Show Cause Order entered on September 26, 2002, prohibited the City, the Police Department and the Chief of Police from excluding attorneys or union representatives from interviews of Locust Club members. The Decision and Order of October 8, 2002 vacated the earlier Order and entered a more limited one prohibiting the City, et al., from denying Locust Club members access to attorneys or union representatives during interviews in connection with the specific incident of August 31, 2002. n1 The following is the parties’ stipulation:
1.On Friday, February 14, 2003, at approximately 3:15 p.m., Police Officer Robert Snow responded to a call that there was a robbery in progress in a home at 66 Lincoln Avenue in the City of Rochester.
2.In investigating that complaint, Officer Snow fired his weapon.
3.Command Officers responded simultaneously and following the incident directed that Officer Snow be placed in a police vehicle with an uninvolved command officer. There were only two officers in the vehicle, a supervisor and Officer Snow.
4.Subsequently, Officer Snow was taken to the Public Safety Building; and while in the company of Lieutenant Strem, he requested union representation and an attorney. Lieutenant Strem advised Commander John Girvin of Officer Snow’s request.
5.Ronald Evangelista, President of the Locust Club, who was at the Public Safety Building for the purpose of gaining access to Officer Snow, was met by Commander Girvin.
6.President Evangelista informed Commander Girvin that he wanted to see Officer Snow regarding potential violations of rules and regulations and not the criminal investigation. Commander Girvin said that when Officer Snow was questioned for purposes of an internal investigation, access would be granted. However, the Department was now conducting a criminal investigation and President Evangelista was not permitted access at that stage. President Evangelista requested immediate access to Officer Snow and access was denied.
7.President Evangelista asked Commander Girvin where Officer Snow was, and Commander Girvin responded that he was in the company of a supervisory officer. President Evangelista said that since no questioning was occurring, he would not be interfering if granted access to Officer Snow; and access was again requested and denied. President Evangelista asserted the right to see a member of his unit when requested.
8.Officer Snow asserted his constitutional right to an attorney and that request was granted. Attorney Lawrence J. Andolina spoke with Officer Snow on the telephone. Snow then asserted his right to remain silent and gave no statement. Attorney Andolina is counsel for the union.
9.Soon after asserting his right to remain silent, Officer Snow called President Evangelista and informed him that he was in the company of then Lieutenant Sheppard, the commander of the Professional Standards Section (PSS). Officer Snow requested union representation because PSS was going to take a compelled statement from him. The department asserted exigency and the contractual forty-eight hours notice n2 was not granted to Snow. Evangelista was told that exigency was asserted because the officer discharged his weapon and because no criminal statement was given.
10.President Evangelista was in the company of Officer Snow when he gave a statement in connection with the PSS investigation.
11.On September 26, 2002, at approximately 11:30 a.m., Police Officer John McHale, while in the conduct of his duty as a police officer, discharged his weapon.
12.Command Officers responding to the scene directed that Officer McHale be placed in a supervisor’s car.
13.Were Officer McHale to testify, he would state that he requested union representation and that it was denied.
14.President Evangelista and Vice President Benwitz arrived at the scene and shortly thereafter Commander Girvin arrived. Evangelista told Commander Girvin that he was being denied access to McHale. Commander Girvin directed President Evangelista to remain outside the established perimeter of the scene and that he’d get back to him.
15.Commander Girvin came back to President Evangelista and told him that he, but not Vice President Benwitz, could speak with McHale. President Evangelista questioned Commander Girvin’s authority to limit Officer McHale’s access to the president of the union only.
16.Attorney Andolina arrived at the scene with an Order to Show Cause. n3 Commander Girvin, in consultation with other command officers and counsel, determined that the Order compelled the department to grant a member access to an attorney or his or her union representative upon request.
17.When asked to give a criminal statement McHale asserted his right to remain silent.
18.At approximately 6:00 p.m., the department invoked exigency within the meaning of the collective bargaining agreement n4 and McHale was taken to PSS, where he was interviewed in the presence of Vice President Benwitz.
In addition to the above-recited stipulations, the parties have stipulated to the Police Department’s standard operating procedures governing the at-issue criminal investigations, to wit:
1.As part of a criminal investigation, it is a standard operating procedure to separate suspects and witnesses from each other and any third parties not actively involved in conducting the investigation.
2.In incidents involving the firing of a weapon by a police officer, the Police Department conducts two investigations: one, an internal investigation conducted by the PSS; two, a criminal investigation conducted by the Critical Incident Team. Formerly, this investigation was conducted by Homicide. The parties’ collective bargaining agreement (CBA) sets forth, at Article 20, Section 1, a Department Investigation and Bill of Rights provision governing the conduct and rights of members subject to investigations by the PSS, “or by any other section performing similar functions.” n5 Discussion
In 2002, in New York City Transit Authority, 35 PERB 3029 (2002), n6 the Board first recognized that the right of representation in investigatory interviews which may reasonably be believed to lead to disciplinary action is encompassed within the essential statutory rights provided public employees under § 202 n7 of the Act. In so finding, the Board stated that: . . .there is no clearer expression of participation in an employee organization than the request for union representation at an investigatory interview which may result in discipline, such as an employee’s suspension, loss of pay or termination. n8
The Board further reasoned that: [w]hether the employer acts in an overtly hostile, threatening manner or merely denies an employee’s request for representation and requires the employee to participate in an investigatory interview, the Act has been violated. Indeed, it is also in the employer’s interest to have the employee represented by his union. “A single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors. A knowledgeable union representative could assist the employer by eliciting favorable facts . . .” n9
In the instant case, the parties’ CBA provides for union representation, or Weingarten rights, in investigatory interviews conducted by the Police Department’s Professional Standards Section (PSS). PSS investigations deal with departmental misconduct, and compliance with rules, regulations and operating procedures.
The sole issue before me is whether the statutory right to representation extends to investigatory interviews where an officer faces possible criminal charges arising out of the conduct of his or her job. The City asserts in both its answer and its brief that there is no right to union representation in the context of a criminal investigation. In support thereof, it relies on several scope of bargaining cases where the Board consistently held that bargaining proposals that either explicitly or arguably address the conduct of criminal investigations are nonmandatory in nature. n10
In City of White Plains, n11 the proposal found to be nonmandatory in nature addressed both internal as well as criminal investigations. As to criminal investigations, the proposal sought to limit the length of the interrogation and the use of offensive language, and asserted the right to personal necessities and a recitation of Miranda rights. n12 In Schenectady Patrolmen’s Benevolent Association, n13 the proposal was a multi-paragraph recitation of employee rights which, in a single paragraph, contained a reference to constitutional rights afforded an officer if placed under arrest.
In City of Newburgh, n14 the proposal sought to add to the existing employee bill of rights, a 90-day time frame for the department to investigate civilian complaints against an officer within which time the officer was to be either officially charged or exonerated.
In Police Association of the City of Mount Vernon, Inc., n15 the proposal found to be nonmandatory provided that a member placed under arrest or the suspect of a criminal investigation, be given rights pursuant to the Miranda decision. n16 In Police Benevolent Association of the City of White Plains, n17 the proposal found to be nonmandatory addressed the use of polygraph tests, psychological stress evaluators or any other test designed to measure veracity when investigating an officer.
In City of Rochester, n18 the proposal was a several paragraph bill of rights which provided, by way of summary, that “[t]hese rights shall apply in all cases, whether the Department seeks to interrogate the employee or not.” n19 On the basis of this sentence alone, the entire proposal was found to be nonmandatory. In Town of Haverstraw, n20 the demand was a bill of rights consisting of twenty-one paragraphs which the Board found “would provide a number of safeguards to police officers during investigations of improper conduct.” n21
The Board concluded, however, that it was nonmandatory “because it would apply to investigations involving possible criminal charges against a policeman.” n22 In Police Benevolent Association of Hempstead, New York, Inc., n23 the proposal determined to be nonmandatory limited the use of polygraph and chemical tests. In Police Association of New Rochelle, n24 the demand found to be nonmandatory provided that an officer being questioned for violation of a rule that could constitute a criminal charge could not be compelled to give a statement.
In Troy Uniformed Firefighters Association, Local 2304, IAFF, n25 the demand was a prohibition on the use of polygraph tests. Finally, in Scarsdale Police Benevolent Association, Inc., n26 the demand regarding investigations and interrogations was found to be nonmandatory as it would compel the employer to negotiate procedures identical to those provided in a governing statute. n27
In none of these cases was union representation an integral or deciding factor in the determination of the negotiability issue. I am mindful that the City’s position, in the cases before me, expresses a concern reflected in the Board’s negotiability determinations, to wit, that police department employers should be somehow distinguished from other public employers covered by the Act in terms of the rights extended to their employees. Indeed, the Board articulated this perspective in Police Association of New Rochelle, n28 where it held that:
It is the inherent governmental function of the City’s police department to investigate all possible criminal acts that may have occurred within its jurisdiction, including those criminal violations that may have been perpetrated by policemen. Even if the duty to negotiate were deemed to extend to investigations of departmental misconduct by policemen, it could not embrace conduct that might constitute the subject of a criminal investigation. The City cannot be compelled to relinquish its essential responsibility by negotiating over a demand to insulate its police officers from such an investigation.
There is no compelling argument, however, to extend this bargaining analysis to the denial of a statutory right to which all public employees are entitled under the Act. Moreover, recognition of Weingarten rights for police in criminal investigations is not inconsistent with the Board’s position that police investigatory procedures are a nonmandatory subject of bargaining. n29
This tension between negotiability determinations and the application of statutory rights was specifically addressed in a case decided under the Federal Service Labor-Management Relations Statute (FSLMRS). n30 In United States Department of Agriculture Farm Service Agency Kansas City and the United States Department of Agriculture Office of the Inspector General, FLRA ALJ Dec. No. 130, 1997 FLRA Lexis 141, (1997), the Administrative Law Judge (ALJ), whose decision was affirmed on technical grounds by the FMLA, determined that the OIG violated the FSLMRS when it instructed the union representative in attendance at the investigatory interview that she could not participate.
In a discussion of the respondent’s legal arguments, the ALJ stated: True, the Fourth Circuit Court of Appeals n31 held that it was not permissible to subject investigatory interviews conducted by the Inspector General to contractual limitation through negotiations between the agency and its union. . . . I find the decision of the Court . . .thoroughly sound. Beyond doubt, were investigations of the Inspector General subject to collective bargaining, the independence of the Inspector General . . .would have been compromised; but that is a far cry from concluding that, the statutory Weingarten rights . . .do not apply to investigative interviews of bargaining unit employees conducted by the Inspector General. The [7114(a)(2)(B)] rights are statutory rights wholly independent of collective bargaining. n32
Although the decision of the ALJ above involved an internal investigation, the FLRA has recognized that Weingarten rights under the FSLMRS extend to criminal investigations as well. n33 The City further asserts that public policy considerations militate against allowing union representation in criminal investigations. In support thereof, the City relies upon the decision of the Court of Appeals in City of New York v. Uniformed Fire Officers Association, Local 854, IAFF, AFL-CIO, 95 NY2d 273 (2000). In that case, the parties’ CBA contained a provision relative to investigations and interrogations of firefighters.
When a firefighter, under investigation for fraudulently claiming a work-related disability in order to obtain higher pension benefits, was denied the right to union representation and adequate notice under the contract, the union filed two grievances.
The issue before the Court was not the subject matter of the grievances, but the arbitrability of the grievances where the conduct of the investigation was vested with the New York City Department of Investigation (DOI) by statute, charter and a New York City Mayoral Executive Order, as amended. n34 Allowing the grievances to go to arbitration, the Court reasoned, would impermissibly introduce another layer of decision making and interference in a process that by law belongs only with the DOI. Union representation, while the subject of one of the two grievances, was not found objectionable as a matter of public policy; rather, the intrusion of an arbitrator into the work of the DOI was found to be inappropriate.
Finally, the City argues that the integrity of the police department’s criminal investigative work would be compromised by allowing officers more, or greater, access to and interaction with outside parties than that provided to private citizens. This argument is premised upon the assumption that police officers, when under investigation for possible criminal acts committed in the course of the performance of their work, cease to be afforded rights they are otherwise entitled to as public employees.
The argument posits that an employee of a police department is entitled to only a watered down version of statutory rights under the Act, n35 because of the nature of police work. The City’s argument further suggests that the constitutional rights afforded private citizens are incompatible with statutory rights provided under the Act. Where it has been argued, in the cases discussed below, that Miranda rights, to which the public in general and thus police officers are entitled, vitiate against or are incompatible with Weingarten rights, that argument has been rejected.
Weingarten rights are no more incompatible with Miranda rights than they are with rights afforded police officers under Garrity v. New Jersey, 385 US 493 (1967), n36 and, as set forth in the City’s brief, Garrity attaches in internal investigations conducted by the PSS: the same investigations at which officers are afforded Weingarten rights upon request. The very issues raised herein have been addressed by the National Labor Relations Board (NLRB) and reviewing Courts. While the decisions of the NLRB are not binding, they are nonetheless, instructive. n37
In United States Postal Service (Jenkins), 241 NLRB 141; 100 LRRM 1520 (1979), the NLRB affirmed the decision of an ALJ which found that the Postal Service violated section 8(a) (1) of the National Labor Relations Act (NLRA) when it required an employee to submit to an interview with Postal Service Inspectors, which the employee reasonably feared might result in disciplinary action, while denying his request for union representation at the interview. n38
The Postal Service maintains a Postal Inspection Service which is responsible for the enforcement of federal laws relative to the handling of the mail. The Postal Inspection Service, made up of inspectors who are employees of the Postal Service, conducts criminal investigations and presents evidence for prosecution to the Department of Justice. The Postal Service argued that it had satisfied its obligations under Weingarten by informing the employee of his Miranda rights. It further argued that the employee waived his Weingarten rights by signing a Miranda waiver.
The NLRB rejected that argument and adopted the determination of the ALJ that Miranda does not supersede or satisfy the rights of an employee under Weingarten, and that the right to union representation also attaches to such an investigation. The Postal Service employee, Jenkins, was under investigation for alleged fraud in connection with expenditures for clothing covered by a uniform allowance. When asked to meet with Postal Inspectors, Jenkins requested that his union representative be present.
That request was denied. Jenkins was then read Miranda rights and, when asked to sign a waiver of his rights pursuant to Miranda, he did so and the interrogation took place. In addressing the Postal Service’s argument that the Miranda warnings satisfied the rights afforded Jenkins under Weingarten, the ALJ stated that: It is true that Miranda and Weingarten share one very ethical foundation namely, the belief that a lone individual is subjected to unfair pressures when he is compelled, without being given the right to informed assistance, to submit to an interview about his alleged shortcomings with trained interrogators empowered to cause him to suffer adverse consequences therefor.
Perhaps because of this common ethical foundation, both Miranda and Weingarten rights include the right to preinterview consultation with the representative [citation omitted]. . . . Weingarten rights are statutory rights created by the NLRA with respect to possible adverse action relating to employment, not with respect to possible criminal liability, and do not have as their sole purpose the protection of the individual who seeks representation. Rather, Weingarten contemplates that the union representative will safeguard “not only the particular employee’s interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly.
The representative’s presence is an assurance to other employees in the bargaining unit that they, too, can obtain his aid and protection if called upon to attend a like interview” [citing to the Supreme Court’s decision in Weingarten at 260-261]. . . . [T]he Weingarten class of cases implicitly hold that if such requests are granted, the employee must proceed with the interview. On the other hand, Miranda rights are aspects of the rights to counsel and against self-incrimination which the Constitution affords to individuals as such in connection with criminal investigations. . . . Nor can it be said that Miranda protections are in all respects “greater” than Weingarten protections.
While an attorney would likely be more familiar than a union representative with the employee’s rights under the criminal law, a union representative would likely be more familiar with the employee’s bargaining agreement rights regarding the uniform allowance, retention of his job, and the disciplinary and grievance--arbitration procedure. n39 The Postal Service, in that case, argued that its denial of Weingarten rights was justified by the public’s interest in the integrity of the postal system and the enforcement against the general public, as well as postal employees, of laws regarding the property of the United States in the custody of the Postal Service and the use of the mails.
The ALJ found this not to be availing and concluded that a violation of the NLRA occurred upon the denial to Jenkins of his right to union representation. In United States Postal Service v. National Labor Relations Board, 969 F2d 1064 (D.C. Cir. 1992), the Court was asked to reverse the NLRB and thereby contain the contours of Weingarten, which had already been determined, by the Supreme Court, to be limited rights. The issue before the Court was the right to pre-interrogation consultation with a union representative. The employee there was charged with fraud and embezzlement.
While he was extended the right to union representation at the investigation, when the representative asked to speak with him first so that she would know what the investigation was about, her request was denied. The Postal Service argued that a union representative would likely, in a pre-interrogation consultation, urge the employee to not cooperate with the investigation or to lie to the Postal Inspectors. In addressing that argument the Court stated at page 1071 that: Management is not stripped, we note, of effective control of employee misconduct by allowing employee-union representative consultation in advance of interrogation.
The employer remains in command of the time, place, and manner of the interview, and can concentrate on hearing the employee’s account with “no duty to bargain with the union representative” at the interview [citing to Weingarten]. The fact of prior consultation moreover, can be weighed in evaluating the employee’s credibility. Nor can we agree that obstruction necessarily is promoted by consultation. One might equally forecast, as the Board observed, that an uninformed representative would attempt to obstruct the interrogation “as a precautionary means of protecting employees from unknown possibilities.” [citing to Climax Molybdenum Co., 227 NLRB 1189, 1190 (1977)]
Noting the lack of evidence that the union had any practice of obstructing investigations carried out by the Postal Inspection Service and the fact that prior consultation can aid in an investigation, the Court upheld the decision of the NLRB and extended Weingarten rights to include not simply the presence of a union representative at an interrogation, but the right to a pre-interrogation consultation as well. As the NLRB, FLRA and the courts have considered and rejected the premise that union representation in criminal investigations has any negative impact on those investigations, and in the absence of any evidence to the contrary, I conclude that the right to a union representative, upon request, at a criminal investigation arising out of the conduct of an employee as employee, is encompassed within the Weingarten rights found to extend to public employees under the Act. Based upon the foregoing, I find that the City of Rochester violated § 209-a.1(a) of the Act when it denied the requests of Officer Snow and Officer McHale for union representation, and when it denied the Rochester Police Locust Club the ability to respond to the officers’ request for representation during the investigative interviews conducted by the Critical Incident Team.
IT IS, THEREFORE, ORDERED that the City:
1.Cease and desist from refusing to permit a Locust Club Representative to be present at criminal investigations conducted by the Critical Incident Team relating to possible criminal conduct of a member arising from the performance of his or her job; and
2.Cease and desist from refusing to permit a Locust Club representative to confer with members prior to a criminal investigation conducted by the Critical Incident Team relating to possible criminal conduct of a member arising from the performance of his or her job;
3.Sign and post the attached notice at all locations normally used to communicate with members of the Rochester Locust Club.
JEAN DOERR, Administrative Law Judge
1 There is no record evidence regarding the specific incident of August 31, 2002.
2 Article 20 § 1(18) of the parties’ CBA.
3 Respondent’s Exhibit 2. Order of Justice Kenneth R. Fisher, dated September 26, 2002, that by its terms enjoined the City and the Police Department from excluding attorneys or union representatives from interviews of unit members pending a hearing on the show cause application.
n4 Article 20 § 1(18) of CBA.
5 CBA Article 20 § 1.
6 Confirmed in part, 196 Misc.2d 532, 36 PERB 7009 (Sup. Ct. Kings County 2003) (appeal pending).
7 Section 202 of the Act provides that “Public employees shall have the right to form, join or participate in . . .any employee organization of their own choosing.”
8 New York City Transit Auth., supra, at 3081.
9 Id. at 3082, citing to National Labor Relations Bd. v. J. Weingarten, Inc., 420 US 251, at 262-3 (1975), (hereinafter Weingarten).
10 City of White Plains, 33 PERB 3051 (2000); Schenectady PBA, 21 PERB 3022 (1988); City of Newburgh, 18 PERB 3065 (1985); Police Ass’n of the City of Mt. Vernon, Inc., 13 PERB 3071 (1980); PBA of the City of White Plains, Inc., 12 PERB 3046 (1979); City of Rochester, 12 PERB 3010 (1979); Town of Haverstraw, 11 PERB 3109 (1978) (later history omitted); PBA of Hempstead, N.Y., Inc., 11 PERB 3072 (1978); Police Ass’n of New Rochelle, Inc., 10 PERB 3042 (1977); Troy Uniformed Firefighters Ass’n, Local 2304, IAFF, 10 PERB 3015 (1977); Scarsdale PBA, Inc., 8 PERB 3075 (1975).
11 Supra note 10.
12 Miranda v. Arizona, 384 US 436 (1966). A suspect must be warned before any questioning that she has the right to remain silent, that anything she says can be used against her in a court of law, and that she has the right to the presence of an attorney and if she cannot afford on attorney one will be appointed for her prior to any questioning if she so desires.
13 Supra note 10.
14 Supra note 10.
15 Supra note 10
17 Supra note 10.
18 Supra note 10.
19 City of Rochester, 12 PERB 3010, at 3019 (1979).
20 Supra note 10.
21 Town of Haverstraw, 11 PERB 3109, at 3181 (1978).
23 Supra note 10.
24 FF2Supra note 10.
25 Supra note 10.
26 Supra note 10.
27 Cf. PBA of the City of New York, Inc. v. PERB, 36 PERB 7014 (Sup. Ct. Albany County 2003) (appeal pending) confirming, 35 PERB 3034 (2002).
28 10 PERB 3042, at 3079 (1977).
29 The application of the scope decisions to the issue before me would result in the anomaly whereby a police department could refuse to bargain for representational rights in criminal investigations and also deny those rights when the investigation actually occurs.
30 5 U.S.C.S. §§ 7101, et seq. The FSLMRS extends Weingarten rights to federal employees at § 7114(a)(2)(B) of the Statute. In an effort to insure the integrity of the conduct of federal employees, Congress enacted the Inspector General Act (IGA) of 1978 (5 U.S.C.S., Appx 1, et seq.). The IGA created an Office of Inspector General (OIG) in each of several agencies. Special agents of an agency’s OIG are empowered to conduct independent criminal investigations of the conduct of agency employees, including audits of the agency’s operations.
31 United States Nuclear Regulatory Comm’n v. FLRA,$F F1 25 F3d 229; 146 LRRM 2453 (4th Cir. 1994).
32 United States Dep’t of Agriculture Farm Serv. Agency Kansas City and United States Dep’t of Agriculture Office of the Inspector General Kansas City, supra, at 17-18.
33 Department of the Treasury, Internal Revenue Serv., Jacksonville Dist., 23 FLRA 876; 1986 FLRA Lexis 122 (1986); United States Dep’t of Justice, Office of the Inspector Gen., 56 FLRA 87; 2000 FLRA Lexis 106 (2000); Long Beach Naval Shipyard, Long Beach California, 44 FLRA 1021; 1992 FLRA Lexis 149 (1992); United States Dep’t of Justice Immigration and Naturalization Serv., 42 FLRA 834; 1991 FLRA Lexis 547 (1991); United States Dep’t of Labor Mine Safety and Health Admin., 35 FLRA 790; 1990 FLRA Lexis 263 (1990); See also, Department of Defense, Defense Criminal Investigative Serv. Defense Logistics Agency and Defense Contract Admin. Servs. Region, 28 FLRA 1145, 1987 FLRA Lexis 233 (1987), enforced sub. nom. Defense Criminal Investigative Serv., Dep’t of Defense v. FLRA, 855 F.2d 93 (3rd Cir. 1988), where Weingarten rights attached to a criminal investigation conducted jointly by the OIG and local police.
34 General City Law § 20 (21); New York City Charter §§ 803, 805 and 1128(b); New York City Mayoral Executive Order No. 16, §§ 1 and 4(f) (1978), as amended by New York City Mayoral Executive Order No. 78, § (1984). See City of New York v. Uniformed Fire Officers Ass’n, supra.
35 That some police officers have been found to suffer “a very diminished expectation of privacy” justifying the use of random drug testing does not suggest that police officers otherwise differ from all other public employees in their entitlement to rights protected by the Act. See City of Schenectady, 34 PERB 4505 (2001), citing, at 4513, to Caruso v. Ward, 72 NY2d 432, 441, 21 PERB 7520 (1988).
36 The effect of the Court’s decision in Garrity v. New Jersey, supra, is that an officer in an internal investigation is granted use immunity and transactional immunity from criminal prosecution based upon compelled statements made in the course of internal affairs investigations. It could well be argued that Garrity rights are greater than Miranda rights and yet they are not incompatible with Weingarten rights, as indicated by the parties’ practice concerning the conduct of internal affairs investigations.
37 Section 209-a.6 of the Act. See also, Thousand Islands Cent. Sch. Dist., 11 PERB 3025 (1978).
38 See also, United States Postal Serv., 303 NLRB 463, 467; 138 LRRM 1339 (1991), where it was held that “[t]he Board has rejected the argument that it is inappropriate to apply an employee’s section 7 right of prior consultation to a criminal investigation conducted by Respondent’s Postal Inspectors”, citing to United States Postal Serv., 288 NLRB 864; 130 LRRM 1184 (1988); and United States Postal Serv., 241 NLRB 141; 100 LRRM 1520 (1979). See also United States Postal Serv., 254 NLRB 703; 106 LRRM 1168 (1981).
39 United States Postal Serv., 241 NLRB 141, 152 (1979).