No Weingarten Representation When Employer Assures Employee Discipline Not Possible

Written on 07/09/2022
Will Aitchison

Jacqueline Canovas works for the Miami-Dade County Police Department as a Police Station Specialist in the Training Bureau and is a member of the Professional Law Enforcement Association (PLEA). Canovas’s direct supervisor was Sergeant Audino, who in turn reported to Lieutenant Artime. When Audino was out of the office, Canovas reported directly to Artime.

As a Police Station Specialist, Canovas was responsible for completing “traces,” which are assignments involving a document that is to be reviewed for accuracy and completion. Traces must be submitted to the applicable department by a specified date.

On October 12, 2020, Canovas was assigned a large trace related to payroll. The deadline for the trace was October 26, later extended to October 30.

On October 23, Lieutenant Artime sent Canovas a text asking how the trace was proceeding. Canovas responded, “It’s a lot of work but it’s going good. They just gave us an extension until October 30. Someone must have realized that we really would need more time.”

On Monday, October 26, Sergeant Audino returned to the office. She was unaware that the deadline for the payroll trace had been extended until October 30. On October 27, still unaware of the extension, Audino approached Canovas’s cubicle and inquired as to the status of the trace. Canovas responded that Audino was “picking on her” and “now this was personal.” Canovas stated that she would not speak with Audino and would only speak with Artime. Audino told Canovas that she would let Lieutenant Artime know and left Canovas’s cubicle. At no time during the conversation did Canovas ask for union representation.

After Audino departed from Canovas’s cubicle, Canovas texted Elena Schaffer, who was the vice president of PLEA. Canovas asked Schaffer to “come to my job they are harrsing [sic] me and I told them I won’t meet with them unless you are here.” Schaffer instructed Canovas to call her when she had details with respect to the meeting.

Later, Lieutenant Artime approached Canovas’s cubicle and stated, “It’s my understanding that you want to see me so let’s meet.” Canovas stated repeatedly that she would not meet with Artime without a representative present. Artime informed Canovas that a representative was not necessary because the purpose of the meeting was to discuss the trace and what was needed to meet the new dead­line. Artime also informed Canovas on multiple occasions that the meeting was not disciplinary in nature.

Each time Artime attempted to elicit information about the status of the trace, Canovas would interrupt her. After repeated, unsuccessful attempts to obtain information, Artime concluded that the meeting was unproductive. She adjourned the meeting, and Canovas de­parted from her office. The Department subsequently issued Canovas a written reprimand for her conduct.

Florida’s PERC dismissed an unfair labor practice charge filed by PLEA. PLEA’s core argument was that “taking all of the surrounding circumstances in this case Canovas reasonably believed that the meeting was investigatory and could have resulted in the imposition of discipline.” PERC was unimpressed, holding that “the surrounding circum­stances to which Canovas points are her version of events, which the hearing officer expressly discredited.

“For example, Canovas’s version of the facts include her testimony assert­ing that she was told by both Sergeant Audino and Lieutenant Artime that dis­cipline should be imposed. The hearing officer expressly discredited Canovas’s testimony of what occurred and instead credited the testimony to the contrary of Sergeant Audino, Sergeant Cabelle­ro, and Lieutenant Artime. Based on credibility determinations, the hearing officer resolved conflicts in the testimony and made findings of fact regarding the surrounding circumstances and the events that occurred. It is the hearing officer’s function to consider all evidence presented, resolve conflicts, and judge credibility of witnesses.

“Canovas points to her text message and phone call to Shaffer as support for her asserted belief that the meeting was investigatory and could result in discipline. The hearing officer did not overlook the text message to Shaffer, in which Canovas stated that she was being harassed, or the phone call. Canovas asks us to reweigh the evidence and draw different inferences than the hearing officer, which we may not do.”

Canovas v. Miami-Dade County Board of County Commissioners, 2022 WL 1265867 (Fla. PERC 2022).

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