By Therese Norton
A union representative is generally permitted to assist a fellow union member who is facing a discipline investigation. But, does that assistance include speaking with potential witnesses? And if so, when can a union representative speak with those potential witnesses?
These questions were addressed in the union’s favor in State – Washington State Patrol, when PERC Hearing Examiner Jamie L. Siegel found that WSP interfered with employee rights when it directed a Trooper’s Association (WSPTA) representative not to interview bargaining unit witnesses until after the employer completed its internal investigation.
The case involved a trooper who was being investigated for potential discipline. The employer issued an order warning the trooper that he could not speak with anyone about the matter while the investigation was pending. The trooper sought assistance from WSPTA. The Association representative, Trooper Spike Unruh then spoke with three employees to learn what they witnessed. When management learned of the interviews, it ordered the WSPTA reps to cease speaking with witnesses until after it had completed its investigation and issued an initial determination.
The parties did not dispute that WSPTA had a right to interview bargaining unit employee witnesses when a bargaining unit employee faced potential discipline. The issue in this case focused on the timing of the union’s interviews.
WSPTA argued that WSP interfered with protected union activity. The employer argued that the union rep was not engaged in protected activity when he contacted the potential witnesses and that the union waived its right in their CBA.
Examiner Siegel found that the Association rep was engaged in protected activity because protected activity is broadly defined as activity “taken on behalf of the union” and “conducting union business necessarily includes union executive board members and representatives communicating with bargaining unit employees.”
The Examiner further explained that the rep’s actions related to the parties collective bargaining relationship because the actions directly related to effectively representing employees prior to investigatory interview. The Association argued that the witness interviews were necessary to test the veracity of the employee under investigation, which subsequently informed the Association rep how to best counsel or advocate for the employee who is facing discipline.
The right to interview the potential witnesses is not absolute, the Examiner clarified. The Association rep must be reasonable in his or her behavior or else the activity loses its protection. WSP argued that it was not reasonable for the Association rep to interview potential witnesses at the same time as employer’s investigation because undermine the integrity of the employer’s investigations. Examiner Siegel acknowledged the employer’s concerns, but found that the concerns were not warranted based on the facts in this case.
Siegel strongly rejected WSP’s claim that its management rights provided it exclusive rights over the investigative process:
The employer argues that it has the exclusive right to investigate potential employee misconduct, stating in its brief: “The IA process is an internal managerial function owned exclusively by WSP.” I find ownership of the employer’s investigation process is not at issue in this case. 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.
The Examiner also reviewed the language of the contract to determine whether the Association had waived its right to such interviews. The parties have very detailed process for investigating allegations of employee misconduct and more than 12 pages of the CBA address the topic of employee rights in investigations, discipline and discharge. The Examiner found that none of the contract language “clearly and unmistakably” waived the Association’s rights.
Lastly, the Examiner declined to award the Association’s request for attorney fees. WSPTA based its request on the fact that PERC found WSP committed unfair labor practices three times in the last five years. Examiner Seigel explained that this case is unlike the three previous cases that involved bargaining violations and thus was not “part of a pattern of conduct warranting extraordinary remedies.”
