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Best Practices for Investigatory Meetings: Weingarten, Garrity and Loudermill Rights

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Best Practices for Investigatory Meetings: Weingarten, Garrity and Loudermill Rights PERC, Salem OR, April 5, 2012 Lane Toensmeier, Snyder and Hoag LLC, Of Counsel – PowerPoint PPT presentation

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Title: Best Practices for Investigatory Meetings: Weingarten, Garrity and Loudermill Rights


1
Best Practices for Investigatory Meetings
Weingarten, Garrity and Loudermill Rights
  • PERC, Salem OR, April 5, 2012
  • Lane Toensmeier, Snyder and Hoag LLC, Of Counsel
  • Steven Schuback, Labor Relations Attorney, LGPI
  • Powerpoint acknowledgement to
  • Luella Nelson, Arbitrator
  • Blaise Lamphier, Labor Relations Manager,
    Multnomah County
  • Debra Kidney, Western Region Education
    Coordinator, AFSCME

2
Attorney speak
  • Disclaimer The views of the panelists are their
    own and any similarity to the opinions expressed
    today and the opinions of their employers or
    professional organizations may, in fact, be
    purely coincidental.
  • No warranty express of implied..

3
Weingarten, Garrity a Dash of Loudermill
  • Weingarten Right to Union Representation in
    Investigatory Interviews
  • NLRB v. J. Weingarten, 420 U.S. 251, 88 LLRM 2689
    (1975).
  • The Supreme Court held that an employee has a
    right to have a union representative present
    during an investigatory interview that the
    employee reasonably believes may result in
    discipline.

4
Weingarten Oregons ERB
  • AFSCME, Local 328 v. OHSU, Case No. UP-119-89, 10
    PECBR 922 (1988)
  • ERB adopted the Weingarten rule in investigatory
    interviews where
  • 1) the employee reasonably believes disciplinary
    action is being contemplated or may result
  • 2) the employer insists on the interview and
  • 3) the employee requests representation.

5
Hypothetical 1
  • Supervisor Ted learns of a citizen complaint by
    citizen Hazel Aged that a company delivery truck
    was speeding. Ted sees Employee Joe at the lunch
    line and asks him if he was driving a company
    truck today. Employee Joe responds yes. Ted
    then goes to the log books to see if any other
    trucks where driven that day. None were.
  • Ted gives Joe an oral warning not to speed.
    Right to a rep?
  • Ted gives Joe a suspension. Right to a rep?
  • Ted tells Joe at lunch that he needs to see him
    in his office at 2pm, but gives no reason. Right
    to a rep?
  • Joe comes to the meeting with a Union rep. Ted
    tells Joe that he does not intend to impose any
    discipline, but merely wants to counsel Joe.
    Right to a rep?

6
Hypothetical 1 (continued)
  • Other issues
  • Was the investigation complete?
  • Did Joe give a statement, and how does that
    matter?
  • If Ted had interviewed Joe, could Joe have been
    disciplined?
  • What are the possible consequences of a denial
    of a representation?
  • Is it worth it to management to deny
    representation?

7
Hypothetical 2 Right to a Rep - Purpose of the
meeting?
  • Represented employees in a small office are
    aware a deadline for an important office project
    has been missed. Tension in the office is high
    as the employer is investigating to determine the
    responsible party. Supervisor Jones approaches
    Sam and tells Sam she would like to meet with him
    in her office. Sam nervously inquires about the
    purpose of the meeting. Jones says No big deal.
    I just want to review the way we process the
    audit forms.
  • Sam meets with Jones. They initially discuss
    the audit process. Jones then switches the
    conversation to the missed deadline and begins
    questioning Sam. Sam does not object and
    cooperates with the line of questioning. Based
    on answers provided by Sam, Jones disciplines Sam
    for missing the deadline.
  •  
  • Did Jones commit a ULP by denying Sam a chance to
    have union representation?
  • Was there a contract grievance?

8
Hypothetical 2 (continued)
  • Answer Close call. If ERB determined that the
    Jones deliberately mislead Sam, ERB could void
    the discipline. On the other hand, if ERB
    determined that Jones spontaneously switched
    topics, there is likely no violation. ERB has
    clearly placed the responsibility of requesting
    union representation on the employee. Sams
    right to representation became applicable when
    Jones began questioning about the missed
    deadline. Before such questioning, Sam did not
    have a reasonable belief the meeting could lead
    to discipline. However, once the questioning
    began, Sam had a reasonable belief. He had the
    responsibility to stop the meeting and request
    representation.
  • Note An employer who engages in such
    underhanded tactics will likely cause every
    employee to have a reasonable belief that every
    meeting could lead to discipline. In addition to
    losing the confidence of all employees, the
    employer will be faced with a union
    representative in each and every meeting with an
    employee.

9
Hypothetical 3 THE ROLE OF THE UNION
REPRESENTATIVE IN WEINGARTEN
  •   During a Weingarten Meeting, the employer asks
    a question of the employee that the union
    representative finds confusing. The union
    representative interrupts and asks the employer
    to clarify the question. The employer tells the
    union representative that she may attend the
    meeting but must not interrupt the proceedings or
    she will be asked to leave. The employer refuses
    to clarify the question.
  • In response to the confusing question, the
    employee under investigation gives a confusing
    answer. The union representative again
    interrupts and asks the employee to clarify the
    answer. The employer again instructs the union
    representative to sit quietly during the meeting.
  •  
  • The employer committed a ULP when 
  • A. The employer refused to allow the union
    representative to clarify a question.
  • B. The employer refused to allow the union
    representative to clarify an answer.
  • C. The employer committed two ULPs.
  • D. The employer committed no ULPs.

10
Hypothetical 3 (continued)
  • Answer Under Washington County Police Officers
    Association v. Washington County 12 PECBR 693
    (1991), the employer may not require the union
    representative to sit quietly. The union rep is
    permitted to ask the employer to clarify a
    question. Additionally, at the start of the
    interview, the union rep may also inquire about
    the nature of the interview. Following the
    employers interview, the union rep may ask
    follow-up questions of the employee and suggest
    additional witnesses to the employer.
  •  
  • Because the union representative is allowed to
    ask follow up questions at the conclusion, the
    employer can probably prohibit the union
    representative from interrupting to clarify an
    answer. An employer is advised to use this right
    sparingly as the clarification of answer is in
    the best interest of all parties.
  •  
  • The correct answer is A.

11
Labor or Criminal
12
What You Need to Know About Garrity
  • Garrity No Self-Incrimination
  • Garrity v. New Jersey, 385 U.S. 493 (1967).
  • The Supreme Court held that a law enforcement
    officer may be compelled to give statements under
    threat of discharge but that it would be
    unconstitutional to use those statements in the
    criminal prosecution of the officer.
  • Compelled statements may conflict with Miranda.

13
The Garrity Rule
  • In the event one can reasonably believe the
    misconduct could be subject to criminal
    prosecution, the employee has a right to invoke a
    Garrity protection.
  • Obvious cases theft, DUII.
  • Borderline minor theft with employer as victim
    (reporting issue), theft of services/fraud
    (inaccurate or falsified time cards), official
    misconduct under statute.

14
The Garrity Rule Tips
  • Employer may proceed and discipline on the
    underlying basis of the investigation, but
    employees compelled statement cannot be used in
    criminal prosecution of employee.
  • Employer cannot use a threat of discharge to
    coerce an employee to waive their constitutional
    rights.
  • Employer can provide Garrity and require the
    employee to answer questions.
  • Balancing Employee must balance risk of
    statement and exposure to criminal sanction vs.
    discipline for failure to respond to questions.

15
The Garrity Rule Tips
  • Questions asked must be specifically, directly,
    and narrowly related to the employees duties or
    the employees fitness for duty, AND
  • The employee must be advised that answers to the
    questions will not be used against the employee
    in criminal proceedings (as opposed to department
    action re violation of work rules).
  • If employee refuses to answer questions after
    this warning is extended, they are subject to
    discipline for insubordination.

16
The Garrity Rule Tips
  • Employees can be compelled to give a statement in
    any circumstance. The key issue is whether the
    order gives the employee immunity from
    self-incrimination. For example, an employee can
    be ordered to give a statement against another
    employee (if the employee being questioned is not
    the subject of the investigation). No immunity
    attaches because none is necessary.

17
Hypothetical 4 MORE THAN JUST EMPLOYMENT AT
STAKE
  • Frank is a child welfare worker who, as part of
    his job, regularly transports children in a state
    vehicle. Two days ago, while transporting a
    child to a foster home, Frank was arrested and
    charged with DUII. Franks court case is still
    pending. Franks employer would like to speak to
    him about the incident. What should Frank do
    before meeting with his employer?

18
Hypothetical 4 (continued)
  • ANSWER
  • If he hasnt already, consult a criminal defense
    attorney.
  • Contact his union representative.
  • Ask his employer if he is being ordered to
    cooperate. If the employer is not ordering Frank
    to cooperate, his attorney will likely advise him
    to refrain from giving a statement. If the
    employer orders Frank to cooperate, Frank must
    cooperate or he will risk discipline for
    insubordination. Note in some cases, even when
    Garrity has been fully explained and triggered,
    the criminal defense attorney will insist that
    the worker should not cooperate. In such cases,
    the union representative should assist the
    employee in negotiating a separation from
    employment.

19
What You Need to Know about Loudermill
  • Loudermill Right to Due Process Before Loss of a
    Property Right
  • Cleveland Board of Ed. v. J. Loudermill, 470 U.S.
    532 (1985).
  • The Supreme Court held that a public employee
    who can be discharged only for cause is entitled
    to certain due process rights prior to
    termination.

20
Loudermill Rights The Pre-Diciplinary Meeting
  • 1. Oral or Written Notice of Charges Against
    Them if Employee May Be Deprived of Property
    Right (Ex. Suspension, Termination or Demotion)
  • 2. Explanation of Employers Evidence
  • 3. Opportunity to Be Heard in Response to
    Proposed Action
  • 4. Meeting Cannot be a Pro Forma Exercise

21
Loudermill Rights Tips
  • 1.Employee should be given adequate notice well
    in advance with time to obtain representation.
  • 2. Employee should be given specific details on
    why discipline is being considered and the
    proposed range of discipline as applicable, and
    should know that this is an opportunity for them
    to address why discipline should not occur.
  • 3. A thorough investigation should be conducted
    prior to meeting- just cause standard

22
Loudermill Rights Tips
  • 4.Manager should thoroughly read the
    investigatory file prior to the meeting to assist
    in recognizing disparities between it and what
    the employee says at the meeting.
  • 5. Be professional, and keep emotions in check.
  • 6. Ask questions for clarification as needed.

23
Loudermill Rights Tips
  • 7. Employee should not be interrogated or
    cross-examined. A pre-dismissal meeting is not a
    formal hearing subject to perjury statutes.
  • 8. The union rep (if there is one) has a duty to
    represent the employee, even if the rep
    personally believes the misconduct warrants
    disciplinary action.
  • 9. If a union rep is present, manager should
    listen to his/her viewpoint, but avoid engaging
    in bargaining over the level of discipline.

24
Loudermill Tips
  • Employers
  • Do NOT draft the final discipline before
    Loudermill
  • Provide gap in time prior to imposing discipline.
  • Employees/Reps
  • Come prepared with solutions for the Employer
  • If you think a resolution may work, bring it
    forward
  • State the weaknesses of the case, give a reason
    for mitigation.

25
Hypothetical 5
  • An employer investigates an employee for the
    theft of petty cash of 55. The employer has
    interviewed the employee, with a Rep present and
    Garrity warning, and the employee has denied
    mishandling funds.
  • The employer has contract language that theft is
    gross misconduct subject to termination.

26
Hypothetical 5 (continued)
  • A. Employer terminates employee after
    investigation? Any issues?
  • B. Employer provides notice of right to
    Loudermill hearing. Employee shows up alone and
    employer asks again if employee committed the
    theft. Employee confesses.
  • Should employer have asked?
  • Should employer have provided Garrity?
  • What about right to a rep and clear waiver?
  • C. Employee attends Loudermill with a Rep. Rep
    says that if employer agrees to not terminate
    employee, employee may provide a better
    explanation to the theft with mitigating
    circumstances (ie confess with an excuse)
  • What do you do as the employer?
  • What do you do as the rep? How much do you say
    for the employee to seek a sanction less than
    termination or face other charges for lying?
    (Aka falling on the sword)

27
Questions?
  • Thanks for your attendance participation!
  • Please feel free to contact us at the following
    e-mails
  • Lane Toensmeier, Snyder and Hoag LLC, Of Counsel
  • 503-358-6084
  • lane_at_snyderandhoagllc.com
  • Steven Schuback, Labor Relations Attorney
  • Local Government Personnel Institute (LGPI)
  • 503-588-2251
  • sschuback_at_lgpi.org
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