Union representation during outside agency investigation

NJ State PBA Legal Corner 

By Robert A. Fagella, Esq. and Paul L. Kleinbaum, Esq.

As everyone should know, a law enforcement officer is entitled to representation during an investigatory interview if the officer reasonably believes that discipline may be imposed. In shorthand, this is known as the Weingarten right. Generally speaking, Weingarten rights arise in the context of an interview or investigation by an employer. But what if the interrogation is conducted by an outside agency?

Recently, PERC issued a decision which suggests that employees may be entitled to a similar right if there is an investigation by an outside agency which might result in discipline. The right is not based upon Weingarten but instead upon the PERC laws under which employees have the right to be represented by and fully communicate with their unions. Although the case involved education employees, the principles would also apply to other public employees, including law enforcement officers.

In a case involving the Trenton Board of Education and the Trenton Educational Secretaries Association, decided on April 27, 2023, the Board sent a letter to an employee permitting her union representation during a compulsory interview with the Institutional Abuse Investigation Unit (IAIU) of the New Jersey Department of Children and Families (DCF). The employee was being interviewed as a witness. However, in its letter, the Board stated “. . . that you may have a union representative or legal counsel present at the interview in a non-participatory role.” (italics added) The employee ultimately decided to be interviewed without her union representatives present.

The union filed an unfair practice charge against the Board alleging that the Board’s letter violated the PERC Act when it limited the union representative to a non-participatory role only. The charge was not based on a violation of the union member’s Weingarten right. Instead, the union asserted that its member had the right under the PERC laws to be represented by her union representatives and that the Board’s letter interfered with her ability to communicate with her union about her employment-related interests.

PERC unanimously concluded that the Board violated the PERC Act by advising the member that her the union representative was limited to a non-participatory role. Specifically, PERC held that the Board violated Section 5.4(a)(1) of the PERC Act because the Board’s letter had an objective tendency to interfere with an employee’s right to be represented by and freely communicate with her union outside of the negotiations table, grievances and disciplinary disputes. The agency rejected the Board’s position that a union member’s right to representation was limited to investigatory interviews under Weingarten, in negotiations and in grievances.

PERC rejected the Board’s argument that because the DCF investigation was being done by a third-party agency, it did not trigger an employee’s right to a union representative. First, PERC noted that the union’s unfair practice charge did not allege a violation of Weingarten. Second, PERC relied on the fact that Board policies required employees to cooperate in DCF investigations and that a failure to do could subject an employee to disciplinary action by the Board. Because of this, PERC concluded that the DCF interview was related to the employee’s employment and could have an impact on her terms and conditions of employment. Third, PERC found that the letter violated the Act even though the employee ultimately decided to be interviewed without her union representative. The employee did not decide to go ahead with the interviews until after she received the letter. It was the letter that violated the Act, regardless of whether the employee decided to comply with the restrictions.

Finally, PERC noted the Board could have escaped liability for a violation of Section 5.4(a)(1) if it was able prove that it had a legitimate and substantial business justification for limited union representation. In this case, the Board failed to do so. PERC rejected the Board’s reliance on Weingarten because it was not an issue in the case. PERC also noted that there was nothing in the record indicating that DCF had a rule or regulation requiring non-participatory union representation in an investigatory interview. PERC suggested that had such a rule existed, the Board would have been within its rights to notify its employee of that rule. But the Board violated the Act when it unilaterally chose to go beyond the DCF requirements and limit union representation to a non-participatory role.

The significance of this decision is that it extends the right to union representation in an investigatory interview by a third-party agency. A law enforcement officer now may be entitled to PBA representation if the officer is ordered to participate in an investigatory interview by a third-party agency even though if the Weingarten rights do not apply. Officers who are subject to an investigatory interview by an outside agency should immediately consult with their local PBAs or knowledgeable counsel to determine if they are entitled to PBA representation.