Document Info

DocketNumber: 1369 C.D. 2022

Judges: Fizzano Cannon, J.

Filed Date: 1/18/2024

Status: Precedential

Modified Date: 1/18/2024

  •              IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Department of Corrections,                      :
    Petitioner              :
    :
    v.                              :
    :
    Pennsylvania Labor Relations Board,             :   No. 1369 C.D. 2022
    Respondent              :   Argued: December 4, 2023
    BEFORE:         HONORABLE RENÉE COHN JUBELIRER, President Judge
    HONORABLE CHRISTINE FIZZANO CANNON, Judge
    HONORABLE ELLEN CEISLER, Judge
    OPINION
    BY JUDGE FIZZANO CANNON                                            FILED: January 18, 2024
    The Department of Corrections (Employer) petitions for review of a
    Final Order of the Pennsylvania Labor Relations Board (Board) issued in
    Pennsylvania State Corrections Officers Association v. Pennsylvania Department of
    Corrections, No. PERA-C-21-20-E (Nov. 15, 2022) (Final Order). The Board
    concluded that Employer violated Section 1201(a)(1) of the Public Employe
    Relations Act (PERA),1 43 P.S. § 1101.1201(a)(1),2 by refusing a union representative’s
    request for a private caucus with an employee when a new line of inquiry arose
    during an investigative interview. Upon review, we affirm the Board’s Final Order.
    1
    Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101-1101.2301.
    Section 1201(a)(1) prohibits public employers from “[i]nterfering, restraining or coercing
    2
    employes in the exercise of the rights guaranteed in [the PERA].” 43 P.S. § 1101.1201(a)(1).
    I. Background
    Jason Henry (Employee) serves as a Corrections Monitor at Progress
    Community Corrections Center (PCCC). Final Order at 1. In February 2021, Allen
    Lynch (Security), a Security Lieutenant at PCCC, summoned Employee to an
    investigative interview on behalf of Employer concerning allegations that Employee
    had made racially insensitive remarks to coworkers. Id.
    Before the interview began, Employee asked that Robert Hendricks
    (Union Representative), the local vice president of the Pennsylvania State
    Corrections Officers Association (Union),3 be present as Employee’s Weingarten4
    representative. Final Order at 1. Security granted the request, advised Employee
    and Union Representative of the purpose of the interview, and allowed them to have
    a private caucus before starting the interview. Id.
    The initial focus of the interview was on whether Employee had
    actually made the alleged remarks to his coworkers. Final Order at 4. After
    answering the first question in the interview, Employee requested a further private
    caucus with Union Representative, which was granted. Final Order at 2. Employee
    did not request any additional private caucus during the rest of the interview. Id.
    However, at some point during the interview, Security asked Employee why his
    coworkers would report that he had made the alleged racially insensitive remarks if
    he did not recall making them; at that point, the focus of the interview shifted from
    3
    Union has intervened as a party before this Court.
    4
    In National Labor Relations Board v. Weingarten, Inc., 
    420 U.S. 251
     (1975), the United
    States Supreme Court held that employees have the right to union representation at investigatory
    interviews that they reasonably believe may result in discipline. The Pennsylvania Supreme Court
    has recognized, with approval, the Board’s adoption of the Weingarten rule as applicable to PERA
    cases. Pa. Off. of Admin. v. Pa. Lab. Rels. Bd., 
    916 A.2d 541
    , 547, 551 (Pa. 2007).
    2
    what Employee said to whether Employee was truthful and credible in answering
    Security’s interview questions. 
    Id.
     at 2 & 4. Union Representative requested a
    private caucus with Employee, which was denied. Id. at 2. The interview continued
    thereafter until Employee had answered all of Security’s questions. Id. Employer
    subsequently found the coworkers’ allegations to be substantiated and issued
    Employee a written reprimand. Id.
    The Union thereafter filed an unfair labor practice charge asserting that
    Employer violated Section 1201(a)(1) of the PERA by denying Union
    Representative’s request to caucus with Employee during the investigative
    interview. Final Order at 2. Following a hearing held in August 2021, a Hearing
    Examiner concluded that Employer had violated Section 1201(a)(1) by refusing to
    allow Employee to caucus with his Weingarten representative.5 Id.
    Employer filed exceptions with the Board, arguing that Security
    properly refused a caucus request by a Weingarten representative because any such
    request must be made by the employee personally. Final Order at 3. The Board
    rejected Employer’s argument, reasoning:
    The fact that . . . [Union Representative] made the request
    to caucus does not destroy . . . [Employee’s] right to confer
    with his Weingarten representative. Once the request for
    a Weingarten representative is made and has been granted,
    the Weingarten representative steps into the interview with
    certain statutory rights to provide mutual aid and
    protection, assistance and representation, as permitted by
    law on behalf of the employe[e].
    Id.
    5
    However, the discipline imposed on Employee was not based on information obtained in
    the investigatory interview. Final Order at 3. Accordingly, the Hearing Examiner issued a cease
    and desist order but did not provide any remedial relief. Id.
    3
    Employer also asserted that Union Representative, in his caucus
    request, exceeded the scope of his role as a Weingarten representative by attempting
    to transform the investigative interview into an adversarial proceeding. Final Order
    at 4. The Board rejected this assertion as well, explaining:
    It is the function of the [H]earing [E]xaminer, who is in a
    position to view the witnesses’ testimony first-hand, to
    determine the credibility of witnesses and to weigh the
    probative value of the evidence presented at the hearing
    . . . . The [H]earing [E]xaminer may accept or reject the
    testimony of any witness in whole or in part . . . . The
    Board will not disturb the Hearing Examiner’s credibility
    determinations absent the most compelling of
    circumstances . . . .
    In this case, the Hearing Examiner did not credit the
    testimony of [Employer’s witnesses] concerning the
    alleged adversarial conduct of . . . [Union Representative]
    during the investigatory interview. The Hearing Examiner
    concluded that . . . [Union Representative’s] request to
    caucus with . . . [Employee] during the investigatory
    interview was reasonable and that the request [did] not
    transform the interview into an adversarial contest, nor
    would it deprive [Employer] of its ability to control the
    investigation . . . . [Employer] has failed to present
    compelling reasons to warrant reversal of the Hearing
    Examiner’s credibility determinations . . . .
    Id. (internal quotation marks and citations omitted).
    Ultimately, the Board dismissed Employer’s exceptions, concluding:
    [Security’s] question regarding why . . . [Employee’s]
    coworkers would report that he made racially insensitive
    comments if, in fact, he did not make such remarks
    changed the focus of the interview. Thus, the Hearing
    Examiner found that the question posed to . . . [Employee]
    for which a consultation was sought was a substantial
    question regarding his veracity which could lead to
    additional discipline.[]
    4
    When the questioning of . . . [Employee] deviated from
    whether he made the alleged racist remarks, to an inquiry
    as to the truthfulness of his answers, the new line of
    questioning triggered . . . [Employee’s] right to confer
    with his [U]nion [R]epresentative prior to answering the
    question . . . . Therefore, it was permissible for . . . [Union
    Representative], as the Weingarten representative, to
    request a caucus with . . . [Employee] prior to answering
    the question to adequately provide assistance and
    knowledgeable representation with regard to the new line
    of inquiry . . . .
    Final Order at 4-5 (citing Pac. Tel. & Tel. Co. v. Nat’l Lab. Rels. Bd., 
    711 F.2d 134
    ,
    137 (9th Cir. 1983) (Pacific Telephone) (holding that “once union representation has
    been afforded, the representative may speak for the employee he represents and
    either the union representative or the employee may make the request for [a] pre[-
    ]interview conference”)) (emphasis added) (footnote and additional citations
    omitted).
    II. Issue
    On appeal,6 Employer does not challenge Employee’s right to a
    Weingarten representative at the investigative interview. Moreover, as the Board
    observed, Employer “did not except to the Hearing Examiner’s conclusion that . . .
    [Security’s] question concerning the veracity of . . . [Employee] fundamentally
    changed the nature of the interview . . . .” Final Order at 4 n.2. Thus, Employer
    does not dispute that the private caucus request would have been appropriate if made
    by Employee himself. Therefore, the sole issue for our review is the legal question
    6
    Our review of a final order of the Board is limited to determining whether the Board
    committed an error of law or violated constitutional rights or whether necessary findings of fact
    were supported by substantial evidence. Com. v. Pa. Lab. Rels. Bd., 
    826 A.2d 932
    , 933 n.2 (Pa.
    Cmwlth. 2003) (citing Harbaugh v. Pa Lab. Rels. Bd., 
    528 A.2d 1024
     (Pa. Cmwlth. 1987)).
    5
    of whether a Weingarten representative may request a private caucus at an
    appropriate point during an investigative interview or whether such a request must
    come from the employee personally.
    III. Discussion
    The seminal case establishing the right to a union representative during
    an investigatory interview is National Labor Relations Board v. Weingarten, Inc.,
    
    420 U.S. 251
     (1975). In Weingarten, the United States Supreme Court upheld a
    decision of the National Labor Relations Board (NLRB) that an employer violated
    an employee’s rights under the National Labor Relations Act (NLRA)7 by denying
    her request to have a union representative present during an investigative interview
    that could have led to discipline.
    The parties do not dispute that the rationale of Weingarten applies to
    cases arising under the PERA. See Off. of Admin. v. Pa. Lab. Rels. Bd., 
    916 A.2d 541
    , 547, 551 (Pa. 2007). They do not dispute that employee rights arising under
    Weingarten include an employee’s right to request a private caucus with a union
    representative where appropriate; nor do they dispute that the caucus request at issue
    here would have been appropriate if made by Employee himself. See, e.g., Com. v.
    Pa. Labor Rels. Bd., 
    826 A.2d 932
    , 934-36 (Pa. Cmwlth. 2003) (explaining that an
    employee has a right to have union representation in an investigatory interview and
    to consult with that representative before answering a question asked in the interview
    “when a significant question is asked such as one that could result in the discipline
    of the employee or when the question asked may be interpreted in more than one
    way”) (citations omitted). Rather, the parties’ dispute relates solely to the effect of
    7
    
    29 U.S.C. §§ 151-168
    .
    6
    Weingarten on the issue presented here. Employer insists that Weingarten provides
    only a limited right to union representation and that only the employee, not the union,
    may request such representation, including a private caucus with a union
    representative. The Board and the Union counter that a right to a private caucus is
    part of the right to have a union representative present during an interview to protect
    an employee’s rights; therefore, it does not matter whether a caucus request comes
    from the employee or the union representative.
    In Weingarten, an employee was interviewed concerning two different
    accusations of wrongdoing, both of which were ultimately determined to be
    unfounded. 420 U.S. at 254-56. The employee requested the presence of a union
    representative in relation to both accusations, but her employer denied both requests.
    Id. Thus, unlike the instant matter, Weingarten did not relate specifically to a caucus
    request, and there was no attempt by a union representative to invoke rights on behalf
    of an employee. Accordingly, we must determine what guidance, if any, the
    Supreme Court’s analysis in Weingarten provides here.
    Quoting with approval a decision of the NLRB, the Supreme Court in
    Weingarten observed:
    [I]t 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 which may put his job security
    in jeopardy. Such a dilution of the employee’s right to act
    collectively to protect his job interests is . . . unwarranted
    interference with his right to insist on concerted protection,
    rather than individual self-protection, against possible
    adverse employer action.
    420 U.S. at 257 (internal citations and quotation marks omitted). The Court went on
    to state, however, that “the right arises only in situations where the employee
    7
    requests representation. In other words, the employee may forgo his guaranteed
    right and, if he prefers, participate in an interview unaccompanied by his union
    representative.” Id. Employer seizes upon this latter language in Weingarten as the
    basis for its insistence that only the employee himself, not his union representative,
    may request a private caucus.
    As this Court has explained, “[w]hen there are no Pennsylvania cases
    on point, we have been encouraged by the Supreme Court of Pennsylvania to follow
    the NLRB cases interpreting provisions of the NLRA similar to the PERA.” Com.
    v. Pa. Lab. Rels. Bd., 
    826 A.2d at
    934 (citing Appeal of Cumberland Valley Sch.
    Dist., 
    394 A.2d 946
     (Pa. 1978)). Here, although there is no prior decision on point
    under the PERA, the United States Court of Appeals for the Ninth Circuit addressed
    an analogous issue under the NLRA in Pacific Telephone.               There, in two
    consolidated cases, union representatives attending investigative interviews with
    employees requested private caucuses with the employees before the interviews, but
    the employer denied both requests. 711 F.2d at 135-36. The NLRB found that the
    employer had violated the employees’ rights under Weingarten by denying the
    caucus requests. Id. at 136.
    On appeal, the employer in Pacific Telephone, like Employer here,
    pointed to the language in Weingarten stating that an employee’s right to
    representation in an investigative interview “arises only in situations where the
    employee requests representation.” Weingarten, 420 U.S. at 257, cited in Pac. Tel.,
    711 F.2d at 137. The employer argued that the quoted language required, by
    extension, that the employee, not the union representative, must assert any caucus
    request. Pac. Tel., 711 F.2d at 137. The Court of Appeals squarely rejected that
    argument, explaining:
    8
    The . . . question presented by the petition is whether the
    request for a conference must come from the employee
    himself. Here, . . . the request came from the union
    representative . . . . [T]he Supreme Court has stated that
    the right to union representation at an investigatory
    interview as defined by the [NLRB] is a right which must
    be requested by the employee and which the employee
    may choose to forego [sic]. See Weingarten, 420 U.S. at
    257. We read this to mean that the employer need not
    suggest that the employee have union representation and
    not, as Pacific Telephone argues, that only the employee
    himself may so request. In our judgment, once union
    representation has been afforded, the representative may
    speak for the employee he represents and either the union
    representative or the employee may make the request for
    pre-interview conference.
    Id.
    We find Pacific Telephone persuasive here.             Weingarten contains
    sweeping language supporting employee rights to union representation and
    participation, at least to some extent, in employer interviews. The Weingarten
    Court observed:
    [A]n employee in seeking to have the assistance of his
    union representative at a confrontation with his employer
    [has] the right . . . to engage in . . . concerted activities for
    the purpose of . . . mutual aid or protection . . . . This is
    true even though the employee alone may have an
    immediate stake in the outcome; he seeks []aid or
    protection[] against a perceived threat to his employment
    security. The union representative whose participation he
    seeks is, however, safeguarding 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.
    ....
    9
    Requiring a lone employee to attend an investigatory
    interview which he reasonably believes may result in the
    imposition of discipline perpetuates the inequality the
    [NLRA] was designed to eliminate, and bars recourse to
    the safeguards the [NLRA] provided to redress the
    perceived imbalance of economic power between labor
    and management . . . .
    ....
    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, and save the
    employer production time by getting to the bottom of the
    incident occasioning the interview. Certainly his presence
    need not transform the interview into an adversary contest
    ....
    Weingarten, 420 U.S. at 260-63 (internal footnote, citations, and quotation marks
    omitted).
    We conclude that the broad language from Weingarten discussing
    employee rights is applicable here. In particular, we are persuaded by the Supreme
    Court’s suggestions that a union representative’s presence includes participation and
    that an unrepresented employee may be led by fear or ignorance to fail to protect his
    own rights.     A knowledgeable union representative is indispensable in such
    circumstances, yet requiring such a representative to stand mute when the
    employee’s right should be asserted is tantamount to denying representation
    altogether. Accordingly, consistent with our Supreme Court’s recommendation to
    follow NLRB cases interpreting provisions of the NLRA similar to the PERA, we
    hold that a Weingarten representative has a right to request a private caucus with an
    employee to the same extent that the employee himself could make such a request.
    10
    To the extent that Employer suggested Union Representative’s request
    was properly denied because he was adversarial or disruptive in requesting a private
    caucus with Employee during Employer’s investigative interview, the Hearing
    Examiner found that assertion not credible, as set forth above. Absent any such
    inappropriate conduct, Union Representative was entitled as Employee’s
    representative to request a private caucus at appropriate times. Specifically, in this
    case, Union Representative, as well as Employee, had the right to request a caucus
    at the point of the interview where the subject matter of the questions shifted to a
    new issue not the subject of a previous caucus, and which could have resulted in
    additional discipline.
    Moreover, to the extent Employer suggests that allowing a union
    representative to request a private caucus when the focus of an interview shifts to a
    new issue will expand the current status of employee rights, we acknowledge the
    United States Supreme Court’s approval in Weingarten of the NLRB’s “evolutional
    approach” to interpreting and applying the NLRA in changing employment climates:
    [I]ts earlier precedents do not impair the validity of the
    [NLRB’s] construction . . . . The use by an administrative
    agency of the evolutional approach is particularly fitting.
    To hold that the [NLRB’s] earlier decisions froze the
    development of this important aspect of the national labor
    law would misconceive the nature of administrative
    decisionmaking. Cumulative experience begets understanding
    and insight by which judgments . . . are validated or
    qualified or invalidated. The constant process of trial and
    error, on a wider and fuller scale than a single adversary
    litigation permits, differentiates perhaps more than
    anything else the administrative from the judicial process.
    ....
    It is the province of the [NLRB], not the courts, to
    determine whether or not the need [for further
    interpretation] exists in light of changing industrial
    11
    practices and the [NLRB’s] cumulative experience in
    dealing with labor-management relations.               For the
    [NLRB] has the special function of applying the general
    provisions of the Act[NLRA] to the complexities of
    industrial life . . . , and its special competence in this field
    is the justification for the deference accorded its
    determination . . . . Reviewing courts are of course not to
    stand aside and rubber stamp [NLRB] determinations that
    run contrary to the language or tenor of the [NLRA]. But
    the [NLRB’s] construction here, while it may not be
    required by the [NLRA], is at least permissible under it,
    and insofar as the [NLRB’s] application of that meaning
    engages in the difficult and delicate responsibility of
    reconciling conflicting interests of labor and management,
    the balance struck by the [NLRB] is subject to limited
    judicial review . . . . In sum, the [NLRB] has reached a
    fair and reasoned balance upon a question within its
    special competence, its newly arrived at construction of
    [the NLRA] . . . .
    Weingarten, 420 U.S. at 265-67 (internal citations and quotation marks omitted).
    This analysis is equally applicable to the Board’s statutory rights and
    duties in interpreting and applying the PERA. See Com. v. Pa. Labor Rels. Bd., 
    826 A.2d at 936
     (stating that “[t]he responsibility to adapt [the] PERA to changing
    patterns of industrial life is entrusted to the Board” and citing Weingarten, 420 U.S.
    at 266). Accordingly, the absence of prior Board decisions addressing the right of a
    Weingarten representative was no impediment to the Board’s authority to do so here,
    and the Board was within its discretion to conclude that Union Representative
    properly requested a private caucus with Employee in the circumstances of this case,
    i.e., where the interview’s focus shifted to a new issue that could result in additional
    discipline.
    12
    IV. Conclusion
    Based on the foregoing discussion, we affirm the Board’s Final Order.
    ___________________________________
    CHRISTINE FIZZANO CANNON, Judge
    13
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Department of Corrections,              :
    Petitioner      :
    :
    v.                          :
    :
    Pennsylvania Labor Relations Board,     :   No. 1369 C.D. 2022
    Respondent      :
    ORDER
    AND NOW, this 18th day of January 2024, the Final Order of the
    Pennsylvania Labor Relations Board dated November 15, 2022 is AFFIRMED.
    ___________________________________
    CHRISTINE FIZZANO CANNON, Judge