Best Practices for Investigatory Meetings: Weingarten, Garrity and Loudermill Rights PERC, Salem OR, April 5, 2012 Lane Toensmeier, Snyder and Hoag LLC, Of Counsel Steven Schuback, Labor Relations Attorney, LGPI Powerpoint acknowledgement to: Luella Nelson, Arbitrator Blaise Lamphier, Labor Relations Manager, Multnomah County Debra Kidney, Western Region Education Coordinator, AFSCME
Attorney “speak” Disclaimer: The views of the panelists are their own and any similarity to the opinions expressed today and the opinions of their employers or professional organizations may, in fact, be purely coincidental. …No warranty express of implied……..
Weingarten, Garrity & a Dash of Loudermill • Weingarten: Right to Union Representation in Investigatory Interviews • NLRB v. J. Weingarten, 420 U.S. 251, 88 LLRM 2689 (1975). The Supreme Court held that an employee has a right to have a union representative present during an investigatory interview that the employee reasonably believes may result in discipline.
Weingarten & Oregon’s ERB • AFSCME, Local 328 v. OHSU, Case No. UP-119-89, 10 PECBR 922 (1988) ERB adopted the Weingarten rule in investigatory interviews where: 1) the employee reasonably believes disciplinary action is being contemplated or may result; 2) the employer insists on the interview; and 3) the employee requests representation.
Hypothetical #1 Supervisor Ted learns of a citizen complaint by citizen Hazel Aged that a company delivery truck was speeding. Ted sees Employee Joe at the lunch line and asks him if he was driving a company truck today. Employee Joe responds “yes.” Ted then goes to the log books to see if any other trucks where driven that day. None were. • Ted gives Joe an oral warning not to speed. Right to a rep? • Ted gives Joe a suspension. Right to a rep? • Ted tells Joe at lunch that he needs to see him in his office at 2pm, but gives no reason. Right to a rep? • Joe comes to the meeting with a Union rep. Ted tells Joe that he does not intend to impose any discipline, but merely wants to counsel Joe. Right to a rep?
Hypothetical #1 (continued) Other issues: • Was the investigation complete? • Did Joe give a statement, and how does that matter? • If Ted had interviewed Joe, could Joe have been disciplined? • What are the possible consequences of a denial of a representation? • Is it worth it to management to deny representation?
Hypothetical #2: Right to a Rep - Purpose of the meeting? Represented employees in a small office are aware a deadline for an important office project has been missed. Tension in the office is high as the employer is investigating to determine the responsible party. Supervisor Jones approaches Sam and tells Sam she would like to meet with him in her office. Sam nervously inquires about the purpose of the meeting. Jones says “No big deal. I just want to review the way we process the audit forms.” Sam meets with Jones. They initially discuss the audit process. Jones then switches the conversation to the missed deadline and begins questioning Sam. Sam does not object and cooperates with the line of questioning. Based on answers provided by Sam, Jones disciplines Sam for missing the deadline. • Did Jones commit a ULP by denying Sam a chance to have union representation? • Was there a contract grievance?
Hypothetical #2 (continued) Answer: Close call. If ERB determined that the Jones deliberately mislead Sam, ERB could void the discipline. On the other hand, if ERB determined that Jones spontaneously switched topics, there is likely no violation. ERB has clearly placed the responsibility of requesting union representation on the employee. Sam’s right to representation became applicable when Jones began questioning about the missed deadline. Before such questioning, Sam did not have a reasonable belief the meeting could lead to discipline. However, once the questioning began, Sam had a reasonable belief. He had the responsibility to stop the meeting and request representation. • Note: An employer who engages in such underhanded tactics will likely cause every employee to have a reasonable belief that every meeting could lead to discipline. In addition to losing the confidence of all employees, the employer will be faced with a union representative in each and every meeting with an employee.
Hypothetical #3: THE ROLE OF THE UNION REPRESENTATIVE IN WEINGARTEN During a Weingarten Meeting, the employer asks a question of the employee that the union representative finds confusing. The union representative interrupts and asks the employer to clarify the question. The employer tells the union representative that she may attend the meeting but must not interrupt the proceedings or she will be asked to leave. The employer refuses to clarify the question. In response to the confusing question, the employee under investigation gives a confusing answer. The union representative again interrupts and asks the employee to clarify the answer. The employer again instructs the union representative to sit quietly during the meeting. The employer committed a ULP when: A. The employer refused to allow the union representative to clarify a question. B. The employer refused to allow the union representative to clarify an answer. C. The employer committed two ULP’s. D. The employer committed no ULP’s.
Hypothetical #3 (continued) Answer: Under Washington County Police Officers Association v. Washington County 12 PECBR 693 (1991), the employer may not require the union representative to sit quietly. The union rep is permitted to ask the employer to clarify a question. Additionally, at the start of the interview, the union rep may also inquire about the nature of the interview. Following the employer’s interview, the union rep may ask follow-up questions of the employee and suggest additional witnesses to the employer. Because the union representative is allowed to ask follow up questions at the conclusion, the employer can probably prohibit the union representative from interrupting to clarify an answer. An employer is advised to use this right sparingly as the clarification of answer is in the best interest of all parties. The correct answer is A.
What You Need to Know About Garrity Garrity: No Self-Incrimination Garrity v. New Jersey, 385 U.S. 493 (1967). • The Supreme Court held that a law enforcement officer may be compelled to give statements under threat of discharge but that it would be unconstitutional to use those statements in the criminal prosecution of the officer. • Compelled statements may conflict with Miranda.
The Garrity Rule: • In the event one can reasonably believe the misconduct could be subject to criminal prosecution, the employee has a right to invoke a Garrity protection. • Obvious cases: theft, DUII. • Borderline: minor theft with employer as victim (reporting issue), theft of services/fraud (inaccurate or falsified time cards), official misconduct under statute.
The Garrity Rule: Tips • Employer may proceed and discipline on the underlying basis of the investigation, but employee’s compelled statement cannot be used in criminal prosecution of employee. • Employer cannot use a threat of discharge to coerce an employee to waive their constitutional rights. • Employer can provide Garrity and require the employee to answer questions. • Balancing: Employee must balance risk of statement and exposure to criminal sanction vs. discipline for failure to respond to questions.
The Garrity Rule: Tips • Questions asked must be specifically, directly, and narrowly related to the employee’s duties or the employee’s fitness for duty, AND • The employee must be advised that answers to the questions will not be used against the employee in criminal proceedings (as opposed to department action re: violation of work rules). • If employee refuses to answer questions after this warning is extended, they are subject to discipline for insubordination.
The Garrity Rule: Tips • Employees can be compelled to give a statement in any circumstance. The key issue is whether the order gives the employee immunity from self-incrimination. For example, an employee can be ordered to give a statement against another employee (if the employee being questioned is not the subject of the investigation). No immunity attaches because none is necessary.
Hypothetical #4:MORE THAN JUST EMPLOYMENT AT STAKE: Frank is a child welfare worker who, as part of his job, regularly transports children in a state vehicle. Two days ago, while transporting a child to a foster home, Frank was arrested and charged with DUII. Frank’s court case is still pending. Frank’s employer would like to speak to him about the incident. What should Frank do before meeting with his employer?
Hypothetical #4 (continued) ANSWER • If he hasn’t already, consult a criminal defense attorney. • Contact his union representative. • Ask his employer if he is being ordered to cooperate. If the employer is not ordering Frank to cooperate, his attorney will likely advise him to refrain from giving a statement. If the employer orders Frank to cooperate, Frank must cooperate or he will risk discipline for insubordination. Note: in some cases, even when Garrity has been fully explained and triggered, the criminal defense attorney will insist that the worker should not cooperate. In such cases, the union representative should assist the employee in negotiating a separation from employment.
What You Need to Know about Loudermill • Loudermill: Right to Due Process Before Loss of a Property Right • Cleveland Board of Ed. v. J. Loudermill, 470 U.S. 532 (1985). The Supreme Court held that a public employee who can be discharged only for cause is entitled to certain due process rights prior to termination.
Loudermill Rights: The Pre-Diciplinary Meeting 1. Oral or Written Notice of Charges Against Them if Employee May Be Deprived of Property Right (Ex.: Suspension, Termination or Demotion) 2. Explanation of Employer’s Evidence 3. Opportunity to Be Heard in Response to Proposed Action 4. Meeting Cannot be a Pro Forma Exercise
Loudermill Rights: Tips 1.Employee should be given adequate notice well in advance with time to obtain representation. 2. Employee should be given specific details on why discipline is being considered and the proposed range of discipline as applicable, and should know that this is an opportunity for them to address why discipline should not occur. 3. A thorough investigation should be conducted prior to meeting- “just cause” standard
Loudermill Rights: Tips 4.Manager should thoroughly read the investigatory file prior to the meeting to assist in recognizing disparities between it and what the employee says at the meeting. 5. Be professional, and keep emotions in check. 6. Ask questions for clarification as needed.
Loudermill Rights: Tips 7. Employee should not be interrogated or cross-examined. A pre-dismissal meeting is not a formal hearing subject to perjury statutes. 8. The union rep (if there is one) has a duty to represent the employee, even if the rep personally believes the misconduct warrants disciplinary action. 9. If a union rep is present, manager should listen to his/her viewpoint, but avoid engaging in bargaining over the level of discipline.
Loudermill Tips: • Employers: • Do NOT draft the final discipline before Loudermill • Provide gap in time prior to imposing discipline. • Employees/Reps: • Come prepared with solutions for the Employer • If you think a resolution may work, bring it forward • State the weaknesses of the case, give a reason for mitigation.
Hypothetical #5 An employer investigates an employee for the theft of petty cash of $55. The employer has interviewed the employee, with a Rep present and Garrity warning, and the employee has denied mishandling funds. The employer has contract language that theft is “gross” misconduct subject to termination.
Hypothetical #5 (continued) A. Employer terminates employee after investigation? Any issues? B. Employer provides notice of right to Loudermill hearing. Employee shows up alone and employer asks again if employee committed the theft. Employee confesses. • Should employer have asked? • Should employer have provided Garrity? • What about right to a rep and clear waiver? C. Employee attends Loudermill with a Rep. Rep says that if employer agrees to not terminate employee, employee may provide a better explanation to the theft with mitigating circumstances (ie: confess with an excuse) • What do you do as the employer? • What do you do as the rep? How much do you say for the employee to seek a sanction less than termination or face other charges for lying? (Aka: falling on the sword)
Questions? Thanks for your attendance & participation! Please feel free to contact us at the following e-mails: • Lane Toensmeier, Snyder and Hoag LLC, Of Counsel • 503-358-6084 • email@example.com • Steven Schuback, Labor Relations Attorney • Local Government Personnel Institute (LGPI) • 503-588-2251 • firstname.lastname@example.org