Las Vegas POA

Promise Of No Discipline? No Weingarten Rights

Written on 04/02/2020
Will Aitchison

The Fraternal Order of Transit Police (FOTP) and the Southeastern Pennsylvania Transit Authority (SEPTA) are parties to a collective bargaining agreement. Mark Byrne had been a police officer at SEPTA for approximately two-and-a-half years when in December 2017, Byrne responded to a radio call concerning a man on a train station platform with four other SEPTA police officers. Byrne later described some sort of altercation, during which the officers arrested the man and then transported him to the hospital.

Byrne testified that afterwards, he was required to report to the 15th District of the City of Philadelphia Police Department to provide a statement regarding the incident to a detective. He explained how the detective asked him questions, typed up his responses, and then gave him the opportunity to review the statement before signing off.

The Department later initiated an internal affairs investigation of the December 2017 incident. During Byrne’s interview, the investigator questioned him about an alleged discrepancy between his statement to the City detective and footage available from the body-worn cameras and platform surveillance.

Following the internal affairs interviews, Byrne was placed on restricted or modified duty for three days. SEPTA also took away his firearm and removed him from patrol duties. Two of the other officers present at the scene were discharged. The Department then began a criminal investigation into the incident.

When Byrne and the other two officers who had been cleared in the internal affairs investigation were summoned for an interview in the criminal investigation, they were told they had no right to representation by the FOTP because no disciplinary consequences could come out of the investigation. The Department also advised that the officers would not be given any Garrity warnings but would be disciplined if they refused to answer questions or answered untruthfully.

The police chief then met in person with the three officers and the FOTP’s president. The Chief indicated that the internal affairs probe was completed and that the three officers were found not to have committed any departmental violations. The Chief told them they were in no jeopardy of discipline and that these interviews were no different than the cases they handle daily where they provide statements to detectives regarding somebody else’s conduct. The Chief also told them they were in no jeopardy of being a criminal target, as this inquiry was focused on the actions of the two officers who had been terminated.

The Department then interviewed the officers without Union representation. The FOTP filed an unfair labor practice charge with Pennsylvania’s Labor Relations Board, contending that the denial of representation violated the officers’ Weingarten rights.

A hearing officer for the Board rejected the complaint. The hearing officer held that “it is well settled that a public employee has the right under Weingarten to union representation at an investigatory meeting with his or her employer that the employee reasonably believes may result in the imposition of discipline. An employer can effectively rebut an employee’s claim of reasonable expectation of discipline by demonstrating that the employer assured the employee that no discipline would result from the meeting.

“Where the employer gives the employee reasonable assurances that they will not be disciplined as a result of answering the employer’s questions, generally the employee should rely on that representation and not have any fear of discipline. Where, however, the assurances are less than convincing, the right to union representation still prevails. And, where the employer accuses the employee of lying during the interview or questions the veracity of the answers provided, the employer then has an obligation to reassure the employees that there will be no discipline or to honor the request for union representation.

“In this case, the record shows that SEPTA assured the three police officers who were subject to the criminal investigation interviews that no discipline would result from the meetings. Indeed, the Chief credibly testified that he specifically told the officers that they were in no jeopardy of discipline or of even becoming a criminal target and that the inquiry was focused solely on the actions of the other officers. There is no credible evidence to suggest that the Chief’s assurances were less than convincing.”

Fraternal Order of Transit Police, 51 PPER ¶ 51 (Penn. LRB ALJ 2020).

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