PERB Addresses Need for Procedural Admonitions for Post Investigation Union Member Interviews
In December 2018, the Public Employee Relations Board (“PERB”) held in City of Commerce (2018) PERB Decision No. 2602-M, that in limited circumstances, when interviewing employees who are union members, the employer must assure the employee-witnesses that: 1) their participation is voluntary and that 2) the public employer would not impose any consequences based on the witnesses answers or refusal to answer certain questions. While the case should be limited to situations where the employer is conducting post-investigation interviews in preparation for an adversarial hearing, and where the questions relate to union strategy, unions may be arguing for broader interpretation of the case, so caution is warranted.
A. Prior to the PERB Complaint
In this case, the local union filed a grievance over the City of Commerce’s decision to terminate one of its bargaining union members. The grievance eventually proceeded into two non-consecutive days of arbitration.
After the first day of arbitration, the union informed the City of its intention to introduce two employees as witnesses for the second day of hearing. The City then interviewed these witnesses, who were union members. During the course of these interviews, the City did not assure the employees that their interviews were voluntary, nor did it inform the employees that it would not impose any consequences based on the employees’ respective answers or refusal to answer. Further, during the interviews, the City asked each witness as to their knowledge of why they were being called to testify by the union.
Ultimately, the second day of arbitration went forward and the termination was upheld by the arbitrator. The union filed a complaint with PERB, questioning the propriety of the employee interviews. Specifically, the union contended that the City interfered with the employees’ rights and denied the union its right to represent its members by asking the employees about their knowledge of why they were being called to testify.
B. Adjudication of the PERB Complaint
The PERB administrative law judge held that the City violated the employees’ rights, as they were engaging in protected activity by participating in the arbitration. This decision was upheld by PERB.
PERB’s holding relied on State of California (Department of Corrections) (1995) PERB Decision No. 1104-S (“Corrections”), which in turn adopted the National Labor Relations Board’s (“NLRB”) decision in Johnnie’s Poultry Company (1964) 146 NLRB 770, enf. Den. (8th Cir. 1965) 344 F.2d 617 (“Johnnie’s Poultry “). In Johnnie’s Poultry, the NLRB acknowledged that an employer may have legitimate reasons for questioning employees, but must observe certain safeguards to mitigate certain dangers of coercion. To avoid the appearance of coercion or actual coercion, the NLRB ruled that the employer must: 1) communicate to the employee the purpose of the questioning; 2) assure the employee that no reprisal will take place; and 3) obtain the employee’s participation on a voluntary basis. It is of note that the matter in Johnnie’s Poultry related to questioning employees about an alleged unfair practice, while in Corrections, the matter turned on the propriety of employee questioning related to a disciplinary action. In both cases, however, the interviews were conducted for the purpose of preparing for an adversarial hearing, not as part of a neutral fact gathering process.
Ultimately, with respect to the instant matter, PERB held that an employer wishing to interview exclusively represented unit members in advance of an adversarial hearing must follow the Johnnie’s Poultry safeguards. (City of Commerce, supra¸ Id. at 7). PERB further held that for adversarial hearings, and specifically, in the context of pre-arbitration interviews, Johnnie’s Poultry safeguards would place parties on equal footing and encourage good faith bargaining over mutual pre-arbitration discovery rights.
PERB also ruled that the City engaged in wholly inappropriate conduct by questioning the witnesses knowledge as to why the union was calling them as witnesses in the ongoing proceeding.
While PERB held in Commerce that a public employer must follow Johnnie’s Poultry procedural safeguards in pre-arbitration interviews, it did not necessarily limit such procedural admonitions being offered solely in such situations. (See Id. at 13, fn. 9). PERB adopted the standards outlined in the Corrections decision, which pertained a threatening comment made by a manager to a union witness who had been called to testify at a State Personnel Board hearing regarding the proposed discipline of another union employee. Therefore, the Johnny’s Poultry standard would appear to apply to situations where (1) the employer has already conducted its neutral fact finding investigation related to a grievance, disciplinary matter, or other matter that could result in an adversarial hearing; (2) the proposed witness is a union member; and (3) the interview could be perceived as interfering with the union’s right to represent its members. It would not appear to apply to any investigation that an employer would conduct to initially investigate allegations of employee misconduct, alleged violations of the collective bargaining agreement, or any other investigation that is designed to be neutral and for the purpose of gathering facts.
This case highlights the need for employers to conduct thorough, neutral investigations in any situation involving allegations where a union member accused of misconduct, or who files a grievance, has the right to an adversarial hearing. Once arbitration has been requested, or once a statement of charges has been served on an employee accused of misconduct, additional burdens are placed on the employer if they want to gather additional evidence from union members. It is best to avoid these additional burdens, because it is easy to forget about the Johnny’s Poultry admonitions that are required. If, however, such interviews are necessary for witness or case preparing, employers are advised to ensure that such admonitions are given.