Victims Not Entitled To Union Representation During Meeting

Melissa Forsette and Jill Foley are police officers with the City of Scranton, Pennsylvania. Their labor organization, Lodge 2 of the Fraternal Order of Police (FOP), filed a grievance on their behalf alleging a hostile work environment. In particular, the FOP alleged that the Police Chief had referred to Forsette and Foley as being “whores” for requesting the same overtime work opportunities as their male counterparts.

Raymond Hayes, the City’s public safety director, investigated the complaint. Hayes sustained the charges, suspended the Police Chief for one week, and directed him to make a public apology for having referred to Foley and Forsette as “whores.”

The City’s director of human resources then summoned Foley and Forsette to a meeting with Hayes. The purpose of the meeting was for Hayes to tell the officers the outcome of his investigation of the grievance. When the officers requested representation by the FOP, Hayes denied their request.

The FOP subsequently filed an unfair labor practice charge, contending that Forsette and Foley were entitled to Union representation during the meeting with Hayes under the rule of NLRB v. J. Weingarten,Inc., 420 U.S. 251 (1975). An administrative law judge (ALJ) for Pennsylvania’s Labor Relations Board rejected the complaint.

The ALJ found that “employees do not have the right to union representation unless they reasonably believe that the investigatory interview might result in the imposition of discipline against them. The record shows that Hayes explained to Foley and Forsette at the outset of the meeting that they were not entitled to union representation because they were victims and not the object of any disciplinary action and that the City was apologizing to them for the Police Chief’s reference to them as whores. Noticeably absent from the record is any evidence that the meeting was calculated to form the basis for taking any action against Foley and Forsette because of past misconduct on their part. Also noticeably absent from the record is evidence that their belief that the meeting might result in the imposition of discipline against them was reasonable. Thus, they were not entitled to union representation at the meeting.”

Fraternal Order of Police, Lodge 2 v. City of Scranton, No. PF-C-08-132-E (Pa. LRB ALJ 2009).

This article appears in the October 2009 issue