‘No-Contact’ Order Ruled Illegal

This article appears in the February 2020 issue of our monthly newsletter, Public Safety Labor News.

The 22 police officers in the Oakdale Police Department in California are represented by the Oakdale Police Officer’s Association. The Department’s officers wear body cameras.

On March 26, 2018, a lieutenant approached Police Chief Scott Heller to discuss concerns over how certain video files were indexed. After logging into the Department’s system to understand the lieutenant’s concern, Chief Heller noticed an unusual file named “delete.” The file was a video clip from the bodycam of an officer identified only as Sergeant A. The video had inadvertently been left on during a morning roll call and briefing.

The video recorded Sergeant A saying something to the effect that Sergeant B had finally had his dream come true of arresting a black person. Sergeant A made this statement while also holding up a picture of a symbol associated with white supremacy, suggesting the picture belonged to Sergeant B. Sergeant A’s comments related to an arrest Sergeant B had made during a prior shift where at least one of the suspects taken into custody by Sergeant B and his team was African American. Three officers were initially present in the briefing room to hear Sergeant A’s remarks: Officer C, Officer D, and Officer E.

Heller retained an independent investigator to look into the conduct in the video. The subject of the investigation was Sergeant A. The four witnesses were Sergeant B and Officers C, D, and E. Heller instructed the investigator that witnesses to the investigation were to be given confidentiality directives not to discuss the investigation.

The investigator gave each witness nearly identical notices, informing them that because they were not the subject of the investigation, they did not have the right to be represented during the interview and ordered them not to discuss the interview or investigation with anyone.

When the investigator interviewed Sergeant A, he ordered Sergeant A not to discuss the interview or investigation with anyone except his representative and that any failure to obey the directive would be grounds for discipline up to and including termination from employment. During his interview with Officer C, the investigator instructed that the no-contact order included any union representative. During the interview with Officer E, the investigator told him that he did not need a representative, but also warned him he could be disciplined if he was untruthful in his interview. Later, Officer E was told that he could not speak with his union representative.

The Association filed an unfair labor practice complaint with California’s Public Employment Relations Board, alleging that the no-contact orders were illegal. An administrative law judge for PERB agreed with the Association.

The ALJ held that “there is no more fundamental right afforded employees under the statutory collective bargaining scheme than the right to communicate with others about working conditions. Working conditions include the circumstances underlying and surrounding an investigation into alleged employee misconduct.

“The Association has established a prima facie case that the City interfered with employee protected rights when it issued the confidentiality directives to both the percipient witnesses and Sergeant A barring them from discussing the investigation with other employees. In addition, the confidentiality directive issued to the four percipient witnesses prohibited them from speaking about their interviews and the investigation with their exclusive representative. The City argued pursuant to NLRB v. J. Weingarten, Inc. (1975), that the four percipient witnesses were not entitled to union representation because they were not the subject of the investigation. The City’s reliance on Weingarten is misplaced.

“An employee’s protected right to consult with union representatives is not isolated to situations involving an investigative interview or other highly unusual circumstance. Employees have the protected right to seek help from their exclusive representative regarding employment concerns. This right is separate and distinct from an employee’s request for union representation during a meeting with management pursuant to Weingarten.

“The confidentiality directives issued to the four witnesses did not simply limit them from having union representation present during their interviews. It was a broad directive prohibiting them from communicating with their exclusive representative at all on the matter. Because each witness had a protected right to discuss the investigation with their exclusive representative, the Association has established a prima facie case that the City also interfered with employee protected rights when it issued the confidentiality directives to the witnesses barring them from discussing the investigation with the Association.

“Because the Association has established a prima facie case of interference, it is incumbent on the City to provide a legitimate justification for its confidentiality directive. An employer’s generalized concern with protecting the integrity of its investigations is insufficient to outweigh employees’ protected rights. The City stated that corruption of its investigation was likely to occur because the incident being investigated involved supervisory and subordinate employees, involved police officers who by a collective nature subscribe to a ‘code of silence,’ involved racially charged conduct, or related to an active criminal investigation.

“The City also seems to suggest that allowing the four witnesses to consult with the Association would have undermined the integrity of the investigation because its representative could have acted as a ‘conduit’ between the witnesses. These general facts, without more, are insufficient to substantiate the City’s concern that corruption of its investigation was probable. It was incumbent on the City to look at the specific individuals involved, the specific facts presented to first determine whether witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover up.”

Oakdale Police Officers Association v. City of Oakdale, 44 PERC ¶ 99 (Cal. PERB ALJ 2019).

Also in the February 2020 issue:

  • Employer Required to Bargain Over Many Lexipol Policies
  • Lying, Not Complaint About Profiling, Was Basis For Investigation Into Officer
  • Detroit Sergeant Was Not Illegally ‘Seized’
  • Corrections Administrator Wins $1 Million Whistleblower Action
  • Reporting To Work On Time Essential To Firefighter’s Job
  • Who Is ‘Similarly Situated’ For Disciplinary Purposes?
  • The Standard For A Fitness-For-Duty Evaluation
  • Arbitration Panel Rules In Favor Of Pre-Statement Review Of Video
  • Detective Who Responded To Mother’s Welfare Check Call Before Her Death Loses Workers’ Comp Claim
  • Q & A
  • Not Improper ‘Direct Dealing’ For Negotiators To Have Sidebar Discussion
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