Miranda Warnings Trigger Weingarten Rights

An employee’s right to representation by a labor union arises when the employee reasonably believes that discipline could result from questioning by the employer. There are cases holding that when an employer gives an employee a “Garrity order” – an order to answer questions or discipline will result – Weingarten rights are automatically triggered. A recent Illinois case reached the same “automatic triggering of Weingarten” conclusion with respect to Miranda warnings.

The case involved the Cook County, Illinois Sheriff’s Office. Gerardo Martinez was a probationary correctional officer working in the Cook County Jail. An inmate alleged that he was beaten by gang members and that Martinez failed to protect him while he was in custody and failed to provide him with medical attention.

The Office of Professional Review (OPR) of the Sheriff’s Office initiated an investigation. Two OPR investigators picked up Martinez at his house and drove him to a Dunkin Donuts for coffee. In the car, the investigators asked whether Martinez knew why they were there. Martinez replied that he believed they wished to inquire about his lost weapon. The investigators informed Martinez that they were in fact conducting an investigation into alleged collusion between officers and inmates, specifically, with respect to an inmate named Thomas Prater.

When they arrived at the Dunkin Donuts, Martinez asked if he needed union representation. The investigators told Martinez that they could not tell him whether or not he needed union representation, but informed him that he was not “in trouble.” They then asked Martinez whether he was willing to help them out in making arrests or by giving the names of individuals involved in the incident. Martinez asked whether helping them would jeopardize his career. They said it would not. Instead, the investigators explained that they would simply follow up with additional questions if Martinez provided information leading to an arrest. The investigators never notified Martinez that he was the subject of the investigation.

However, the investigators presented Martinez with a document entitled “Advice of Rights.” The document amounted to a Miranda warning, notifying Martinez of his rights to remain silent and to a lawyer, and culminated with a waiver of Martinez’s rights. Martinez signed the document and an interview resulted. Following the investigation, OPR recommended that Martinez be terminated, a recommendation the Sheriff accepted.

Martinez’s labor organization filed an unfair labor practice complaint, alleging that the interview violated the right to representation under Weingarten. The general counsel for the Illinois Labor Relations Board agreed.

The General Counsel concluded that “Martinez had a reasonable belief that disciplinary action might result from the questioning because the investigators informed him that his answers could be used to support the imposition of criminal sanctions. The standard for determining whether an employee reasonably expects discipline is objective, measured in light of all the circumstances of the case. An interview that may subject an employee to criminal sanctions may clearly also form the basis for disciplinary action. Here, the investigators provided Martinez a Miranda warning and thereby fostered a reasonable belief that disciplinary action might likewise result from Martinez’s answers.

“Notably, Martinez maintained his reasonable belief that disciplinary action might result from the questioning, despite the investigators’ earlier reassurances that the interview would not place his career in jeopardy. First, the Miranda warning raised ambiguity concerning the purpose and effect of the investigation, notwithstanding the investigators’ contrary assertions. This ambiguity reasonably intensified Martinez’s apprehension of discipline since, as a probationary employee, he was already vulnerable to severe punishment for any policy violations he may have committed.

“Also, Martinez made a legitimate request for representation when he asked the investigators whether he needed a union representative to be present. The Board has held that the request for representation does not have to be perfect; it need only put the employer on notice that the employee desires the assistance of a union representative. An employee’s inquiries as to whether he needs a union representative, such as those expressed by Martinez in this case, trigger the Weingarten right.”

The General Counsel rejected the Sheriff’s argument that Martinez waived the right to representation, commenting that “the investigators’ coercive conduct precludes a finding that Martinez waived his Weingarten rights by continuing the interview. An employee who waives his Weingarten rights must do so knowingly and voluntarily. Careful scrutiny of a purported waiver is particularly important with respect to the Weingarten right because the right being waived is designed to prevent intimidation by the employer. For that reason, it would be incongruous to infer a waiver without a clear indication that the very tactics the right is meant to prevent were not used to coerce a surrender of protection. Here, the investigators patently misrepresented the gravity of Martinez’s circumstances by falsely telling him that his answers would not jeopardize his career. In truth, as the investigators well knew, Martinez was the target of a formal, criminal investigation by OPR, which reasonably could – and ultimately did – end his career. Thus, Martinez’s decision to continue the interview was not knowing and voluntary because it was based on false information that was intended to coerce his cooperation.”

In the end, though, the General Counsel did not order that Martinez be reinstated. The General Counsel found that the Sheriff did not base his termination decision “predominantly on information obtained from Martinez’s unlawfully solicited interview statement. Rather, Martinez’s admissions were duplicative of information that the Respondents obtained from three other sources. Prater asserted that he banged on the door while bloody and advised Martinez that he needed medical attention, which Martinez never provided. Another inmate confirms that Martinez observed Prater through the door, grabbed his radio to call in an emergency, but did not make the call because another detainee instructed him not to. A third inmate observed that Martinez failed to call in the emergency. Thus, the Sheriff had ample basis on which to impose discipline, even absent Martinez’s admissions that he observed Prater’s injuries and did not report the incident.

“Thus, make-whole relief is not warranted here because the Respondents did not predominantly rely on the unlawful interview in making the termination decision.” Instead, the General Counsel ordered the Sheriff to cease and desist from the violation of employee Weingarten rights and to post a notice in the workplace of the finding the he had committed an unfair labor practice.

Sheriff of Cook County, 31 PERI ¶ 199 (Ill. LRB Gen. Coun. 2015).