In July 2009, the Internal Affairs Division (IAD) of the Pennsylvania State Police (PSP) was investigating allegations of misbehavior against a PSP member. As part of that investigation, IAD interviewed Corporal Edmund Fret.
At the outset of the interview, the IAD representative gave Fret a “reverse-Garrity” warning. In the warning, PSP ordered Fret to answer questions, and advised him that his answers and the fruits of his answers would not be used to criminally prosecute him. Fret then requested representation from his labor organization, the Pennsylvania State Troopers Association (PSTA).
PSP took the position that since Fret was a witness, he was not entitled to union representation. PSTA later filed an unfair labor practice, alleging that Fret’s right to representation under the Weingarten rule had been violated by PSP.
Pennsylvania’s Commonwealth Court (the equivalent of a court of appeals) agreed with PSTA. As the Court explained, Weingarten rights do not turn on the belief of the employer as to whether the employee will be disciplined as a result of an interview; instead, the right to representation turns on the reasonable belief of the employee:
“This Court finds the circumstances presented clearly precluded the designation of the interviewee as a ‘witness’ as opposed to a ‘subject’ of the investigation. First, although he was told he was not the ‘subject of the investigation,’ Fret was given written Administrative Warnings which advised him that he was being subjected to questioning under pain of losing his employment and, further, that he had the right to union representation upon request. Fret understood ‘that when you’re the subject of the investigation, they are required to give you the administrative warnings…So when he gave me my administrative warning, in my mind, at that point in time I became not just a witness; I became a possible subject of this investigation.’ He explained: ‘I know that when you [are given] a Garrity warning that you should have a union rep, so that’s what I was basing it on.’
“It may well be that in their minds, the Lieutenant and other IAD officials who made the decision to deny Weingarten representation did not consider the investigation to be ‘investigatory’ in nature because the underlying investigation concerned misconduct committed by another employee. However, the inquiry is not focused on the ‘label’ given to the questioning by the employer, but rather, the focus must be on whether the employee reasonably believed an adverse impact could occur as the result of the meeting.
“The information communicated to Fret was conflicted. On the one hand, Fret was told he was not the subject of any investigation. On the other hand, he was given the Administrative Warnings and was advised he had the right to union representation if he reasonably believed his statements could result in an administrative action.
“Based on the circumstances, this Court finds there was sufficient and persuasive evidence that Fret reasonably believed the interview had the potential to result in discipline against him. Clearly, there was a confrontation because a tape-recorded interview took place. After he was given the Administrative Warnings, Fret understood that he became a subject of the investigation and reasonably feared being disciplined. Fret was never assured that he would not be subject to discipline as a result of what he said during the interview. Fret was told he had the right to representation, and then inexplicably deprived of that representation. Once he was given the Administrative Warnings, he was entitled to Weingarten representation.”
Pennsylvania State Troopers Association v. Pennsylvania Labor Relations Board, 2013 WL 3336901 (Pa. Cmwlth. 2013).