‘Witness’ Entitled To Weingarten Representative

Public Safety Labor News

This article appears in the November 2019 issue of our monthly newsletter Public Safety Labor News.


Maylee Bardelas is a police officer with the City of Doral, Florida. Bardelas was accused by Sergeant Eric Fernandez of “intentionally driving away from an active shooter scene” and was charged by the Department with “cowardice.”

Eventually, the investigation determined that “there was insufficient evidence to substantiate a finding that Bardelas was the officer observed driving away from the incident” and the police chief directed Investigator Glenn Stolzenberg to reclassify Bardelas as a “witness officer” rather than a “subject officer.” The officer seen driving away from the incident was designated as “an unknown police officer.”

Stolzenberg directed Bardelas to appear at the internal affairs office on October 23, 2018, for the taking of her statement as a witness officer. Bardelas requested a representative from her labor organization, the Professional Law Enforcement Association. Stolzenberg denied the request, stating, “You are no longer a subject officer. You are being called as a witness.” The Department’s regulations manual states that “members providing witness statements are not entitled to a representative.”

Prior to the start of the interview, Bardelas asked Stolzenberg who the subject officer was. Stolzenberg responded, “We don’t know. We’re here to find out.” Bardelas believed that the interview was an investigatory interview and that her reclassification from a subject officer to a witness officer was a “play on words” because she was still the only subject of the investigation and she was being charged with cowardice. She believed that Stolzenberg was looking for her to make an incriminating statement and that she could be reclassified from witness to subject based on her responses to Stolzenberg’s questions and feared that she would lose her job.

When the interview started, Bardelas told Stolzenberg that her representative was waiting downstairs, and Stolzenberg repeated that her representative was not allowed to be present because Bardelas was a witness officer. Bardelas told Stolzenberg that she was not going to participate in the interview without representation; Stolzenberg told Bardelas that if she did not participate in the interview, “we’ll relieve you of duty starting now.”

In the meantime, the representative attempted to contact Stolzenberg and Bardelas by telephone. Stolzenberg directed Bardelas not to answer her telephone and stated that they would be conducting the interview. Bardelas eventually participated in the interview, though under protest, and she was not disciplined for the underlying incident.

Florida’s Public Employment Relations Commission found that the Department’s actions violated Bardelas’ right to representation under the Weingarten rule. The Commission rejected the Department’s contention that “witnesses” did not have representation rights: “The Commission has consistently rejected the notion that an employee’s right to a union representative at a given meeting hinges on the label the employer attaches to the meeting. Thus, whether characterized as a conference, interview, meeting, investigation, or interrogation – whether disciplinary or investigatory – the label does not determine an employee’s Weingarten right.

“In the same manner, the classification attached to an employee as a witness or subject is not determinative of that employee’s Weingarten right. Otherwise, a public employer could simply classify an employee as a ‘witness’ and deny her right to a union representative under Weingarten.

“The Commission has consistently rejected the notion that an employee’s right to a union representative at a given meeting hinges on the label the employer attaches to the meeting. Thus, whether characterized as a conference, interview, meeting, investigation, or interrogation – whether disciplinary or investigatory – the label does not determine an employee’s Weingarten right. In the same manner, the classification attached to an employee as a witness or subject is not determinative of that employee’s Weingarten right. Otherwise, a public employer could simply classify an employee as a ‘witness’ and deny her right to a union representative under Weingarten.

“The question at the crux of this case is not what the City called the meeting or Bardelas’s status but whether the City sought information that Bardelas reasonably believed might have resulted in discipline against her. Based on the totality of the circumstances viewed from an objective perspective, I find that Bardelas reasonably believed that the October 23 interview was investigatory and could have resulted in her being disciplined.

We credit Bardelas’ testimony that prior to her interview she reasonably believed that she was still the subject of the investigation notwithstanding Stolzenberg’s memoranda. Her belief is supported by the lack of any information from Stolzenberg or the City’s management personnel identifying any other subject officer. Although Stolzenberg notified Bardelas prior to the October 23 interview that, after reviewing the evidence and interviewing witnesses, it had been determined that she was no longer a subject officer and had been re-classified as a witness officer, neither he nor any other City official told Bardelas that the new classification insulated her from discipline for alleged cowardice.”

“Viewed objectively, Bardelas reasonably believed that she was still considered the subject of the City’s investigation into the allegation of cowardice notwithstanding her reclassification as a witness officer rather than a subject officer. Furthermore, from an objective viewpoint, she reasonably believed that her statements in response to Stolzenberg’s questions could lead to disciplinary action. Consequently, her repeated requests to have her representative present during the October 23 interview were reasonable.”

Bardelas v. City of Doral, 46 FPER ¶ 91 (Fla. PERC 2019).

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