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

September 2nd, 2014, The City of New Haven, Connecticut, and Local 825 of the International Association of Fire Fighters are parties to a collective bargaining agreement. In September 2010, Patrick Egan, the president of Local 825, was promoted to Assistant Chief of Administration, a position outside the bargaining unit. Egan was succeeded as president by Lieutenant James Kottage.

Kottage considered Egan to be a harsh administrator and relations between the Local and the City have been strained since Egan’s promotion. Tensions were exacerbated by the fact that, on several occasions, Egan took the position that Local 825 should not be sent copies of materials that union members were also sent to the Chief’s office.

One case involved Lieutenant Gary Cole, who was being investigated for a possibly inappropriate post on Facebook. Cole submitted a report as part of the investigation, providing a copy to Local 825. Egan reprimanded Cole for providing the copy to the Local.

Eventually, Local 825 filed an unfair labor practice complaint, challenging the City’s position that members could not provide the Local with copies of materials provided to the Chief’s office. Connecticut’s State Labor Relations Board upheld the complaint.

The core issue the Board had to decide was whether the right to union representation under NLRB v. Weingarten, 420 U.S. 251 (1975) was limited to in-person disciplinary interviews, or also applied to written statements.

The Board started with the proposition that “it is well settled that an employee is entitled to union representation at an investigatory interview called by the employer where the employee reasonably believes that the interview will result in disciplinary action or jeopardy to the employee’s job security and where the employee has requested representation.” Requiring submission of a written statement by an employee suspected of misconduct is fundamentally no different than a face-to-face investigatory interview.

“An employer should not be able to deny employees their Weingarten rights merely because it has chosen to require that they produce written statements instead of, or in addition to, submitting to oral interviews. Our conclusion that a compelled written statement in this context constitutes an investigatory interview is consistent with the policies articulated by the Supreme Court in Weingarten as employees have the same need for a supportive witness and assistance communicating relevant information.”

“We have no difficulty finding that delivery of Cole’s statement to the Union was protected under Weingarten. There existed a reasonable basis for Cole to believe that discipline could result given the existence of a department policy addressing dissemination of information outside the department and the order to provide the Chief’s office with a written statement concerning his Facebook posting. Cole’s request for representation is evidenced by the conveyance of his statement to the Union, his subsequent consultation with Kottage, and by Kottage’s presence at the disciplinary meeting with Egan.”

“Lastly, the City does not claim, nor do we find, that the meeting was solely for the purpose of informing Cole of a previously made discipline decision. Cole was subject to further questioning on the substance of his statement and Kottage raised similar past conduct by other employees as a defense. In short, we find that the directive to write a statement and to attend a meeting at the Chief’s office gave notice of investigatory interviews which triggered Cole’s Weingarten rights.”

“The City readily admits that Egan’s last directive was a response to Cole sending the Union a copy of his statement and was intended to prevent such employee action in the future. Since we find Cole’s action was protected under Weingarten, we also find that Egan’s directive is a continuing violation of the Act to the extent it prohibits the delivery of similar statements to the Union.”

“The City asserts its willingness to comply with Union requests for relevant information and argues that Egan’s directive does not interfere with such requests. This argument, however, confuses the statutory rights at issue in this case and the applicable standards for assessing violations of these rights. An employee’s right to representation in the investigatory context is separate and distinct from the Union’s right to information in subsequent disciplinary proceedings. The former turns on the existence of an objectively reasonable belief that discipline may ensue whereas the latter requires a showing of relevance through the pendency of such proceedings. In short, Cole’s right to have Kottage review his written statement and accompany him to the meeting at the Chief’s office is considered concerted activity.”

“While the NLRB has declined to squarely address the right to union representation when submitting a written statement in an investigation of employee misconduct, our counterparts in Pennsylvania and New Jersey agree the right exists.”

City of New Haven, Decision No. 4720 (Conn. SBLR 2014).

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