Written by Ed Jacques, LEJ Editor
POAM represents communication dispatchers within the Dearborn Police Department. In 2007, one of the members began a publicly accessible, on-line weblog, popularly referred to as a “blog.” The blog did not identify the city or department that the dispatcher worked for but did comment on dispatch experiences along with many other personal entries on the site.
In 2008, supervisors at the Dearborn Police Department became aware of the blog and reviewed its contents and times of entries. Those command officers were also canvassing the site, investigating possible LEIN law violations. Over the next two days, the entire blog was downloaded and reviewed. The Michigan State Police were contacted for advice on whether the entries had violated any portion of LEIN law. The State Police directed the Dearborn Police Department to conduct an investigation and then consult with the Wayne County Prosecuting Attorney.
Shortly thereafter, two detectives came to the employee’s work station and stated that they needed her help with a case and wanted to speak with her. As the employee walked through the dispatch center on the way to the investigations section, she tapped her union president on the back and motioned for him to come with her. When the president of the local association stood up and began to follow, one of the supervisors stopped him and stated “this was not a union matter.” When the union president asked if the employee was facing any discipline, the command officer responded in the negative claiming it was a criminal investigation. The union rep returned to his work. The employee testified that she had originally thought that she may be receiving additional discipline on a recent incident where she had been giving a written reprimand, and that was her reason for wanting a union representative present.
One of the detectives testified that he had communicated to the employee that he was conducting a criminal investigation and that she was not in custody and free to leave. The employee’s version on this part of the meeting was different. The employee denied that the detectives informed her at any time that she was free to leave the interview and that she was not told this was a criminal interview until half way through the meeting. She testified that she did not believe she was free to leave because she was being interviewed by two command officers and had been delivered to the interview by her immediate supervisor. She was not even aware that the criminal investigation was focused on possible violation of the LEIN law until well into the interview.
When the employee finished the meeting, she was handed a notice suspending her with pay pending completion of the criminal investigation. A report was submitted to the Wayne County Prosecutor’s Office. The Prosecutor declined to prosecute, stating that “administrative action was sufficient.” Shortly after that decision, the employee returned to work as a dispatch communication operator. Her supervisor was then directed to conduct an internal investigation into whether she had violated police department and/or City policies. Once again the employee was interviewed as part of the investigation, this time in the presence of her union representative. The investigator then prepared a report for the police chief.
One month later after the chief received and had time to review the report, the employee was terminated. POAM subsequently filed an unfair labor practice (ulp ) against the City of Dearborn.
In University of Michigan, 1977 MERC Lab Op 496, the Commission adopted the rules set forth in NLRB v Weingarten, 429 US 251 (1976) that an employee has the right to have a union representative present when interviewed by the employer when the employee reasonably believes that the interview may lead to discipline. “Reasonable belief” is measured by objective standards, taking account of all the circumstances of the case. As the Court stated in Weingarten, the employee must invoke the right by requesting union representation. No particular language is required for the request. The employee must merely put the employer on notice that representation is desired. The City of Dearborn asserted that the employee did not request union representation at her original interview even though the record indicated that the employee had asked her union rep to accompany her to the interview by non-verbal gestures. When the union rep began to follow her into the interview room, and was told by a supervisor that it “was not a union matter,” she was effectively being told that she could not have union representation. Administrative Law Judge Julia C. Stern agreed that the employer was put on notice and that the employee’s right under the Public Employees Relation Act (PERA) to the presence of a union representative during the criminal investigation was violated.
In her decision, Judge Stern cites United States Postal Service, 241 NLRB 141 (1979) in which the National Labor Relations Board rejected arguments made by the US Postal Service that its employees had no Weingarten right to union representation at interviews conducted by Postal Service Inspectors as part of criminal investigations. POAM Assistant General Counsel Douglas Gutscher who argued the case stated the obvious, “If an employer is conducting its own criminal investigation on its employees, it is reasonable to believe that possible discipline will arise. The City of Dearborn should have had an independent agency conduct the investigation or allowed the employee her Weingarten rights.” “It’s important that all public employees be reminded that if a separate agency is conducting a criminal investigation, the affected employee does not have to cooperate in any way and can end the interview and leave at any time,” added Gutscher. “Garrity privileges should be invoked during any investigation where there is even a hint of possible criminal charges.”
In Judge Stern’s recommended order, she ordered the City of Dearborn to cease and desist from interfering with, restraining, or coercing employees, including the exercise of rights guaranteed by section 9 of PERA, including the right, on request, to the presence and active assistance of a union representative at an interview, including an interview conducted as part of a criminal investigation, which the employee reasonably believes may lead to discipline. The order must be posted in conspicuous places at the police department for a period of 30 consecutive days.
Editor’s note: A complete library on Weingarten, Garrity and other public employee rights are available at www.poam.net. Never hesitate to call your POAM Business Agent if you need clarification on any issue.