This article originally appeared in a previous issue of “Public Safety Labor News” and is reprinted courtesy of Labor Relations Information System.

November 22nd, 2013 A question that arises from time to time is whether a labor organization has a right to conduct an investigation concurrently with the employer’s disciplinary investigation. An administrative law judge for Washington’s Public Employment Relations Commission has answered the question “yes,” provided the union’s investigation does not interfere with the employer’s.

The case involved the Washington State Patrol (WSP) and the Washington State Patrol Trooper’s Association, which represents rank-and-file WSP member. A trooper under investigation sought the assistance of Trooper Spike Unruh, an Association executive board member. Unruh asked the trooper for his version of events as well as the names of possible witnesses. The trooper identified several bargaining unit employees as potential witnesses. After acquiring the employees’ telephone numbers from dispatch on June 23, Unruh, while off-duty, telephoned three of the employees to learn what they witnessed.

The Patrol informed Unruh that he was not allowed to contact witnesses prior to the conclusion of the employer’s investigation. Unruh did not talk with additional witnesses for fear of discipline.

The Association filed an unfair labor practice charge against the employer, contending that the employer interfered with its collective bargaining rights by limiting the Association’s ability to conduct a concurrent investigation. The ALJ agreed, finding that “unions maintain a variety of rights relating to the support and assistance of bargaining unit employees who are the subject of employer investigations. For example, unions have a right to investigate issues relating to the potential disciplinary action of an employee. Unions also have the right to represent employees through the disciplinary and grievance process.

“A union official must be free to conduct union business without interference from the employer. Conducting union business necessarily includes union executive board members and representatives communicating with bargaining unit employees. Here, a bargaining unit employee under investigation requested assistance from a union executive board member. To better understand what transpired and to effectively represent the employee during the course of the employer’s investigation, the union representative interviewed several bargaining unit employees who were potential witnesses to the conduct in question. The union representative’s activity on behalf of the employee related to the parties’ collective bargaining relationship and involved the administration of the collective bargaining agreement.

“The employer argues that it has the exclusive right to investigate potential employee misconduct. Clearly, accountability for the process rests with the employer. The union representative’s decision to interview bargaining unit witnesses does not constitute a union attempt to take over or interfere with the employer’s investigation process. The union representative interviewed bargaining unit employees to be prepared to effectively represent the employee who requested his assistance.

“I find the employer’s witnesses express sincere and understandable concerns about maintaining the integrity of the employer’s investigations. While I, too, can envision circumstances in which a union representative’s interview of bargaining unit witnesses could compromise the employer’s investigation, this case presents no such circumstances. The record does not establish that Unruh behaved unreasonably when he interviewed bargaining unit employees or that his actions in any way adversely impacted or compromised the employer’s investigation. No evidence suggests witnesses in this case objected to the union’s questioning or raised any concern about the union’s actions. The record includes no evidence that Unruh tried to influence an employee’s memory or testimony or threatened an employee in any manner. Furthermore, the record includes no evidence of any complaints or concerns with any previous union interviews. In fact, the union’s interviews of bargaining unit employees during previous investigations were so non-disruptive that the employer was not even aware they occurred.”

State – Washington State Patrol, Decision 11863 (Wash. PERC ALJ 2013).

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