Questioning About Use Of Force Incident Triggers Right To Representation

The New York State Correctional Officers and Police Benevolent Association represents corrections officers in the New York State prison system. One of the Association’s members is Corrections Officer Ian Wolfe, who is assigned to the Elmira Correctional Facility.

Wolfe was informed, several days in advance, that he was to be questioned by Gary Simpson, Special Assistant to the Department’s Commissioner, on November 9, 2012. Wolfe was not told the subject matter of the meeting, but suspected it concerned a use of force incident that had occurred on July 27, because he was aware that several officers had been questioned in Albany and placed on administrative leave regarding the incident.

Wolfe was a witness to the use of force incident, which occurred during the relocation of an inmate. At one point during the altercation between the inmate and other officers, Wolfe left to retrieve the key to the shower door; when he returned, the inmate was escorted out of his cell and Wolfe observed that the inmate had a “swollen right eye with a cut above it.” Wolfe did not file any report of the incident although the Department’s rules require “all employees to report all threatening behavior, whether from an inmate, the general public or an employee, to supervisory staff immediately so appropriate action can take place.”

Prior to the meeting on November 9, Wolfe asked Simpson if he “was a target or a potential target of disciplinary action” and, if so, he wanted to request union representation. According to Wolfe, Simpson responded that union representation was “not warranted” because they had no reason to believe that Wolfe was a target “at that time.” Simpson’s questioning began with basic, procedural questions. Eventually, Wolfe started asking Simpson to repeat his questions because he didn’t understand the terminology Simpson was using.

Simpson began rolling his eyes, and eventually said, “You sound like a politician now.” Wolfe responded by asking if he was being interrogated and requested representation by the Association. Simpson replied that Wolfe wasn’t entitled to union representation.

Wolfe described Simpson’s tone and demeanor throughout the questioning as follows: “It varied all the time. I mean, if it was something that he didn’t agree with, then you could tell. His tone changed. ‘Are you sure you don’t want to change your answer?’ Things of that nature. He made mention about, ‘Don’t play games with me, and I won’t play games with you.’” Wolfe again requested representation and Simpson again rejected the request.

The questioning lasted for three hours, and included one bathroom break and the viewing of a 20-minute video of the incident. The Association filed an unfair labor practice complaint, alleging that the denial of the requests for representation violated the Weingarten Rule.

An administrative law judge for New York’s Public Employment Relations Board upheld the complaint. The Judge ruled that the key issue was whether Wolfe reasonably believed that an employee is a potential subject or target of discipline. In making that judgment, we consider the totality of the circumstances including the reasonableness of the employee’s subjective perception, which may have precipitated the request for representation.

“Although an employee’s perceptions are relevant to our inquiry, our primary focus is on objective facts in the record. Those facts include: the subject matter and context of the questioning; the verbal and written statements by the employer prior to the questioning; the verbal exchange between the employer representative and the employee; the timing and venue of the questioning; and the treatment of other employees similarly situated. This list is not intended to be exhaustive, but it underscores the importance of clarity in communications, and in purpose, by an employer at the outset and during the questioning of an employee.”

The Judge concluded that “the objective facts in the record amply demonstrate that, at the time Wolfe was questioned, it reasonably appeared to him that he was a potential subject or target of discipline. For instance, Wolfe was informed, several days in advance, that he was to be questioned by Simpson, a high-ranking employee (Special Assistant to the Commissioner) from Albany. Wolfe was not told why he was being questioned, but he was generally aware that, recently, several of his colleagues had been questioned in Albany regarding an excessive use of force incident, and were placed on administrative leave, with no disciplinary notices yet served.

“Much emphasis has been placed on the fact that, according to the State, the questioning of Wolfe by Simpson was a ‘witness preparation’ rather than an interrogation, that Wolfe was reassured of this purpose many times, and that therefore there could be no reasonable appearance to Wolfe that he was being questioned as a potential target or subject of discipline. I agree that the questioning of Wolfe was not an ‘interrogation’ as that term seems to be defined and understood by the parties. However, I also find that it cannot accurately be labeled simply as a ‘witness preparation.’

“Although it had elements of witness preparation and partially may have served that purpose, or may even have been originally intended for that purpose, it also functioned as a fishing expedition on the part of Simpson, who admittedly entered into the interview not fully comprehending what role Wolfe might have played in the use of force incident. Also, on at least two occasions, metamorphosized into questioning about Wolfe’s conduct as opposed to questions concerning what he saw or witnessed others doing.”

New York State Correctional Officers, 48 PERB ¶ 4546 (N.Y. PERB ALJ 2015).