Las Vegas POA

When Does An Employer Have To Disclose Disciplinary Files?

Written on 11/06/2020
Will Aitchison

The City of Milwaukee, Wisconsin and the Milwaukee Police Supervisors’ Organization are parties to a collective bargaining agreement covering sergeants. On May 1, 2019, a police sergeant received written notice from the Department that he would be interviewed on May 14, 2019 as part of an internal investigation concerning his alleged negligent driving.

The notice advised the sergeant that “disciplinary action may result.” A criminal investigation as to the same alleged behavior had previously been conducted and closed in November 2018 with no criminal charges filed.

On May 1, 2019, the Organization asked the City for a copy of the criminal investigation file “in order to represent and prepare for the interview of the Employee.” On May 9, 2019, the City denied the Organization’s request because its internal investigation had not been completed.

On May 14, 2019, the interview of the sergeant occurred as scheduled. He was accompanied by an Organization representative. The interview was recorded, and the sergeant was entitled to receive a copy of the recording. Later that same day, a seven-page summary of the investigation, including the interview, was received by the commanding officer of Internal Affairs.

On June 17, 2019, the Department issued a document entitled “Charges” which concluded that the sergeant had violated the Department’s code of conduct. The sergeant received the “Charges” document on July 2, 2019 along with the seven-page summary of the Department’s internal investigation. The sergeant submitted an apology as his response.

The Organization filed an unfair labor practice charge, known as a “prohibited practice” charge in Wisconsin. It alleged that the City violated its obligation to share bargaining information with the Organization through its refusal to provide the investigation file prior to the Employee’s interview. The Wisconsin Employment Relations Commission rejected the charge.

The Commission acknowledged that it had ruled in prior decisions that employers were required to honor a union request for investigative materials prior to a constitutionally required due process meeting with an employee. The prior decisions were based on the notion that the union’s interest in having the employee avoid discipline and in the overall fairness and equity of the employer’s investigatory and disciplinary procedures outweighed the employer’s interest in the confidentiality of the investigative files.

The Commission found the calculus different when the request for the file preceded the employee’s interview. As the Commission reasoned, “Using a broad discovery type standard, the requested information was relevant and reasonably necessary as to the Organization’s interest in protecting the employee from discipline.

“However, the investigation was not complete, a preliminary determination to impose discipline had not been made, and the Organization’s role in the meeting was limited to assisting the Employee as he responded to questioning. The Organization’s opportunity to assist the Employee’s efforts to present mitigating information or concerns occurred after the investigation was completed and a summary thereof provided to the Employee.

“Balancing the strength of the Organization’s interests against those of the City, we conclude that the City’s interests predominate and thus that the City did not violate its duty to bargain by refusing to provide the criminal investigative file.”

Milwaukee Police Supervisors’ Organization v. City of Milwaukee, 2020 WL 5747114 (WI. Emp. Rel. Com. 2020).

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