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NLRB: Union president not denied assistance of representative during investigatory interview

By Ronald Miller, J.D.

Actions of an employer’s investigator in taking control of a boisterous investigatory hearing for a union president did not unlawfully deprive him of the active participation and assistance of his union representatives.

Although an employer’s investigator instructed all attendees to an investigatory hearing for a union president to stop talking, and limited when they could speak, a three-member panel of the NLRB concluded that the union president was not denied the assistance of a representative “when it [was] most useful to both employee and employer.” Moreover, the employer did not discriminate against the union president when it issued him a final written warning. However, the Board determined that the employer violated Section 8(a)(1) when it issued a rule prohibiting employees from directly contacting Air Force officials regarding employee violations and misconduct, and matters involving a collective bargaining agreement. Member McFerran filed a separate opinion arguing that the employer deprived the union president of the active participation and assistance of his union rep (PAE Applied Technologies, LLC, March 8, 2019).

The employer provides security patrol services under contract to the government at various facilities, including several Air Force bases in the Las Vegas area. The security officers at these installations are represented by a union and were covered by a collective bargaining agreement that expired September 30, 2017.

On February 5, 2016, the Air Force issued two do-not-arm letters, which revoked the authority of two security officers to carry firearms as a result of their arrests for suspected driving under the influence. This prevented the officers from performing their job duties, and the employer suspended them. The employer notified the union of the suspensions, and the union president contacted the Air Force’s director of security forces regarding the matter.

Confrontation with Air Force official. On February 16, the union’s president went to the director of security’s office to discuss alleged discrepancies between the do-not-arm letters issued by the Air Force and the suspension letters issued by the employer. The employer’s security major was present in the office. When the union president questioned the security major about the suspensions and the Air Force’s role, the Air Force’s director of security interjected that he had the authority to issue do-not-arm letters. The union president countered that the Air Force did not have the authority to get involved in matters concerning the CBA. The conversation resulted in the Air Force official and union president raising their voices before the president was instructed to leave.

The next day, the Air Force’s director of security filed a written complaint about the incident. An unclassified version of the complaint asserted that the behavior of the union president was offensive and confrontational. The employer assigned a security specialist to investigate the complaint, and had its security major submit a statement. At this point, the employer decided that discipline of the union president was probably merited but he needed to provide a statement to complete the inquiry to have “both sides of the story.”

Union representative at interview. The union president asked to have the union’s attorney serve as his union representative when he made his statement. On February 19, the employer denied the request even though the attorney was already at the employer’s facility to attend the interview. The union president then agreed to attend a re-scheduled interview with other union officials as his representatives.

On February 24, the union officials met with employer officials in a meeting conducted by the security specialist. The union officials asked for a copy of the Air Force official’s complaint, but were denied on the grounds that it was classified. Soon after the investigatory meeting began, the security specialist concluded that it had gotten out of control with everyone talking at once. Thereafter, the union president was instructed to prepare a written statement about the February 16 incident. No questions were allowed. A question-and-answer session followed, with the union president writing out his answers. Ultimately, the union president was issued a final written warning. The employer also issued a memo stating that security officers should refrain from directly contacting Air Force officials regarding employee violations and matters involving the CBA.

Rule change. The Board agreed with an administrative law judge that the employer violated Section 8(a)(1) when it issued the rule prohibiting employees from directly contacting Air Force officials regarding employee violations and matters involving the CBA. The Board also agreed with the ALJ that the employer violated Section 8(a)(1) when it refused to allow the union’s attorney to act as the union president’s Weingarten representative, and Section 8(a)(5) and (1) when it failed to bargain over an accommodation in response to the union’s request that it furnish the classified complaint that led to the union president’s discipline.

However, contrary to the law judge, the Board declined to find that the employer violated Section 8(a)(1) when the security specialist sought to regain control over the February 24 investigatory meeting by instructing everyone present to stop talking, that the security specialist did not coercively interrogate the union president during the February 24 meeting in violation of Section 8(a)(1), and that the employer did not discriminate against the union president in violation of Section 8(a)(3) and (1) when it issued him a final written warning on March 24. Accordingly, the Board dismissed those complaint allegations.

Weingarten participation. Under Weingarten, union-represented employees have a right, upon request, to have a representative present during an interview that the employee reasonably believes may lead to discipline. However, the Board pointed out that an employer is free to insist that it is only interested, at that time, in hearing the employee’s own account of the matter under investigation.

With that in mind, the Board concluded that the employer’s instruction to all attendees at the investigatory meeting to stop talking, and its limitation of when they could speak, were consistent with these principles. Management, as well as union officials were told that they could not speak unless called upon. Significantly, everyone was instructed to stop talking precisely when the union president’s written statement was sought. Moreover, the union representatives were permitted to ask their own questions before the meeting ended as well.

On these facts the Board determined that the General Counsel failed to establish that the employer denied the union president the “advice and assistance” of his representatives that Weingarten requires.

Moreover, the Board agreed with the ALJ that the union president was engaged in protected activity when he met with the security major in his role as president to discuss the suspension of two unit employees. However, it found that he was disciplined for his interaction with the Air Force official. The final written warning was issued solely because of this confrontation. Thus, the Board found that under the totality of the circumstances, the employer’s discipline of the union president for discourtious behavior toward a customer was lawful.

Partial dissent. Member McFerran argued that the law judge correctly found that the employer committed numerous violations of NLRA associated with its discipline of the union president for conduct that took place while he was performing his representational duties. However, unlike the majority, McFerran agreed with the ALJ that the employer deprived the union president of the active participation and assistance of his union representatives during the investigatory interview and unlawfully disciplined him when it issued him a final written warning. She argued that the record evidence clearly demonstrated that the union president’s representatives were hampered during the interview and that he was unlawfully disciplined for conduct that was inextricably intertwined with statutorily protected conduct, while he engaged in no sanctionable misconduct himself.