‘Ominous Context’ Of Interview Triggers Weingarten Rights

In early 2014, Senior Investigator Donald Oliver of the Office of Special Investigation of the New York Department of Corrections and Community Supervision (DOCCS) began investigating an incident involving the throwing of food by at least one corrections officer at a civilian employee.

On January 28, 2014, Oliver questioned the security staff who had been present in the mess hall at the time of the incident, as well as some civilian staff. Six to eight corrections officers were interviewed at that time; all were afforded union representation. Oliver explained that he “wasn’t sure as to who was on what end of the table and who else was throwing food…So we gave everybody union representation at that point in time.”
Of the corrections officers present during the incident, only Nicole Hassett and one other officer, who had transferred to another facility, were probationary employees. Although Hassett was originally scheduled to be among those interviewed on January 28 or the following day, Oliver was instructed by his supervisor not to conduct her interview at the facility, but rather at DOCCS’s headquarters in Albany, and with a stenographer present, because of her probationary status.

Michael Maltese, a shop steward for the New York State Correctional Officers and Police Benevolent Association, testified that Oliver told him that Hassett would not be questioned at the facility, but at “Building 2” in Albany, because “she was probationary.” However, he testified that “in my experience when someone’s called to Building 2 for questioning, it’s – it’s not for – it’s not for good. Nothing good can come of it. You feel as if you’re in trouble at that point.”

Maltese eventually questioned Hassett on February 10. At the time of the questioning, Hassett’s understanding was that if DOCCS thought she had “done something wrong” she “could be terminated.” She testified that during her questioning, the investigators “told me that if they wanted me gone, they would just get rid of me, that they – I would not get a Notice of Discipline. They would just fire me.”

Hassett was initially accompanied into the interview room by Maltese. Immediately, however, the investigators told Maltese to leave, taking the position that probationary employees had no right to a union representation during questioning. The investigators, including Assistant Deputy Chief Horace Thomas Knight and Five Points Deputy Superintendent for Security Raymond J. Coveny, then questioned Hassett. The investigators repeatedly told Hassett she was just a witness, and not a food-throwing suspect.

Maltese returned to the room where the questioning was being held and asked for a five-minute delay, indicating that he was waiting for a response from the Association’s headquarters. Oliver responded, “You can call whoever you want. This questioning is moving forward.” Maltese hit his hands on the table, called the investigators cowards, and said, “This is fucking bullshit.” Coveny placed a hand on Maltese’s chest and led him from the room.

The Association filed an “improper labor practice” complaint with New York’s Public Employment Relations Board (PERB). The complaint alleged that the conduct of the investigators violated a New York labor statute that provides rights similar to those under the Weingarten Rule. Under the statute, it is illegal for an employer “to fail to permit or refuse to afford a public employee the right, upon the employee’s demand, to representation by a representative of the employee organization, when at the time of questioning by the employer of such employee it reasonably appears that he or she may be the subject of a potential disciplinary action.”

PERB found that the investigators had violated the statute. As a threshold matter, PERB held that probationary employees such as Hassett were fully covered by the statute. The real question, PERB noted, was whether Hassett could reasonably believe that she could be the subject of disciplinary action as a result of the interview.

In PERB’s judgement, numerous factors argued in favor of a conclusion that Hassett’s belief that she could be disciplined was reasonable: “The most significant factor, upon our review of the evidence, is that, as Hassett testified, she was concerned that by not filing a report regarding the mess hall incident, she might have violated departmental rules requiring her to report workplace violence. The fact that the incident under investigation was the very one she had failed to report, quite reasonably would exacerbate that concern, as the lack of a report from her was self-evident.

“Also, the verbal exchange between Hassett and the investigators included a reference to Hassett’s probationary status along with the statement that Hassett’s answers could result in termination without the need for the contractual disciplinary process.” In the context of this case, such a statement could only exacerbate Hassett’s concerns that she was potentially subject to discipline.

“Likewise, we do not find credible the State’s argument that the presence of Deputy Superintendent Coveny at what was purportedly a routine interview of a witness in an almost concluded investigation would reasonably be perceived as intended “to assure that she ‘Hassett’ was comfortable during the questioning.” Indeed, for a probationary employee to be confronted by a Senior Investigator, the Deputy Superintendent for Security of the Facility, and an Assistant Deputy Chief suggests a rather more ominous context than the benign atmosphere of reassurance the State suggests. This is especially so when she is reminded that her employment can be terminated without recourse to any contractual process, and has reason to believe that she might well have in fact violated DOCCS policy with respect to the very incident in question.”

New York State Correctional Officers, 50 PERB ¶ 3037 (N.Y. PERB 2017).