Union Has Right To Conduct Parallel Disciplinary Investigation

When one of its members was the subject of a disciplinary investigation, the Washington State Patrol Troopers Association assigned Executive Board member Spike Unruh to represent the member. Unruh called three bargaining unit employees who were potential witnesses in the investigation. He told the employees he was representing the employee and asked what they had observed.

Unruh spoke with Captain Karen DeWitt multiple times. During the initial discussion, DeWitt and Unruh discussed the complaint. In a subsequent conversation, Unruh told DeWitt he had spoken with witnesses. After speaking with Unruh, DeWitt called the Patrol’s Office of Professional Services (OPS) to report what was occurring. DeWitt later told Unruh he was not to contact witnesses. After receiving the directive from DeWitt not to speak to witnesses, Unruh ceased his investigation out of a concern that he would be disciplined.

Unruh notified Association vice president Mark Soper that the employer had instructed him not to contact witnesses. Soper spoke with Captain Michael DePalma, the OPS division commander. DePalma told Soper union representatives were not to conduct concurrent investigations. In a follow-up e-mail DePalma wrote: “The appropriate timing for a representative of any association to interview or contact witnesses is after the initial determination is provided to the affected employee.” The employer’s direction caused the Association to stop its investigation.

Washington’s Public Employment Relations Commission held that the Patrol’s orders amounted to illegal interference with the Association’s exercise of its rights. The Commission started with some of the basics for an “interference” claim: “An employer interferes with employee rights when an employee could reasonably perceive the employer’s actions as a threat of reprisal or force, or a promise of benefit, associated with the union activity of that employee or of other employees. An employer may interfere with employee rights by making statements, through written communication, or by actions. The union is not required to demonstrate that the employer intended or was motivated to interfere with employees’ protected collective bargaining rights. Nor is it necessary to show that the employee involved was actually coerced by the employer or that the employer had union animus for an interference charge to prevail.”

The Commission then turned to the legality of the Patrol’s orders that the Association not conduct a parallel disciplinary investigation. The Commission concluded that “engaging in an investigation of issues related to potential disciplinary actions of a represented employee is union business protected by the statute. When a union investigation may be helpful in resolving matters before discipline even issues, that conduct is protected. In this case, the union representative’s pre-disciplinary investigation into non-criminal employee misconduct was taken on behalf of the union.

“The purpose of the union’s investigation was to effectively represent the employee during the investigatory process and facilitate settlement. The union representative investigated the noncriminal employee misconduct in his role as a union representative, not as an employee. On the facts of this case, the union representative’s pre-disciplinary investigation into non-criminal employee misconduct was statutorily protected.

“The investigation in this case was reasonable. The union representative investigated non-criminal employee misconduct that may have violated employer policies. The employer’s investigation was initiated after a complaint from a supervisor, not a member of the public. The union confined its investigation to interviewing three bargaining unit employees. The union representative asked the bargaining unit employee witnesses general questions, did not share that information with the employee under investigation, did not investigate criminal matters, and did not contact civilian witnesses.

“A reasonable employee could perceive the employer’s direction not to investigate allegations of non-criminal employee misconduct concurrently as a threat of reprisal or force associated with union activity. On the facts of this case, the employer’s direction to the union representative not to investigate employee misconduct until after the employer concluded its investigation interfered with employee rights.”

Washington State Patrol, Decision 11863-A (PECB, 2014).