Arrest Does Not Necessarily Trigger Weingarten Rights

Written on 05/13/2022
Will Aitchison

The Policemen’s Benevolent Asso­ciation Local No. 105 represents cor­rections officers working for the New Jersey Department of Corrections. The Department ordered corrections Jared Smith and Ivan Rivera to meet with Major Scott Abbott.

Stuart Alterman, the PBA’s counsel, learned of the meeting before it oc­curred. Alterman wrote to Major Brian Labonne, “I understand that you have ordered both officers in for some type of confidential interview. To do so, you must go through me as counsel. Perhaps you were unaware and thus, this email. Kindly contact me in the morning to discuss this matter. I am very curious to learn what a confidential interview is and how it applies in the scheme of things.”

Labonne responded, “You have been provided with incorrect information because Officers Smith and Rivera were not ordered in to be interviewed. They are being ordered to the Major’s Office for a confidential matter. When they arrive this morning, they will be met by myself, or my partner, Major Abbott, and will then be provided with direction accordingly. Because they are not being interviewed, they are not entitled to legal or union representation.”

Alterman responded, “Your actions are illegal and violate these officers’ rights and are otherwise discourteous. Ignorance of these facts are no excuse, and you need to seek counsel yourself. Please be advised official complaint action will be taken against you. A tort claims notice will be filed against you. A lawsuit will then be filed.”

Smith and Rivera were arrested when they met with Major Abbott. The PBA then filed an unfair labor practice charge alleging that the interview vio­lated the rights of Smith and Rivera to representation under the Weingarten rule.

The unfair labor practice director for New Jersey’s Public Employment Relations Commission refused to process the charge. The Director wrote that “an employee has a right to request a union representative’s assistance during an investigatory interview that the em­ployee reasonably believes may lead to discipline. If an employee requests and is entitled to a Weingarten representative, the employer must allow representation, discontinue the interview, or offer the employee the choice of continuing the interview unrepresented or having no interview.

“Here, the PBA does not allege facts to support a Weingarten claim. First, the PBA does not allege Smith and Rivera ever requested union or legal represen­tation during the July 28, 2021 meeting with Major Abbott. This is an essential element to a Weingarten claim.

“Second, the PBA does not allege specific facts to establish the meeting with Smith and Rivera was an investigative interview, another essential element of a Weingarten claim. Although the PBA alleged that the July 28th meeting was an interview, it hasn’t pled with specificity that questions were asked of Smith and Rivera by the Department during that meeting, nor has it set forth the subject(s) of that interview that could reasonably have led Smith and Rivera to believe that they were at risk of discipline.

“On the contrary, the PBA does not dispute that the meeting was to effectuate an arrest, not an interview, and it does not allege that Smith and Rivera could have reasonably believed that their arrest was investigative or akin to an interview. The elements of a Weingarten claim are not pled with sufficient specificity to justify our issuance of a complaint on PBA’s charge.”

State of New Jersey, 2022 WL 810182 (N.J. PERC ULP Director 2022).

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