Union Lacks Right To Record IA Interviews

Many peace officer bills of rights allow employee representatives to record disciplinary interviews. Even in the absence of a statutory bill of rights, a collective bargaining agreement can grant a labor organization the right to record interviews.

But what if there is no statutory bill of rights, and the collective bargaining agreement is silent on the issue of recording? Is there some sort of recording right that springs out of a controlling collective bargaining statute?

“No, there is not,” answered the Michigan Employment Relations Commission in a case involving the Kent County Sheriff’s Department. The Commission started by noting that there was no question but that “an employee is entitled to union representation at an investigatory interview when the employee reasonably believes that the interview may lead to discipline, and invokes his right by requesting the presence of a union representative. The Supreme Court in Weingarten recognized that a balance must be struck between an employer’s right to conduct its investigation without interference and an employee’s right of assistance from the union during such investigation.

“An employer violates the collective bargaining law when it engages in conduct which it can reasonably be said tends to interfere with the free exercise of the rights protected by law. But here there is no argument by the Union that a unit member was ever denied representation at an investigatory interview or that the representative was ever denied the opportunity to act as an active advocate; the act of recording an interview is not advocating on behalf of a bargaining unit member.

“Additionally, while the Union argues that because its representatives are unable to make a tape recording and must instead take handwritten notes, however they are prevented from doing the best possible job in their role as an advocate, there is no right under the law that employees receive the best representation possible. Accordingly restricting a union from recording an investigatory interview does not constitute a violation of the collective bargaining statute.

“The Union next claims that the Employer’s policy unlawfully interferes with the Union’s right to freely govern its internal affairs. In support of this argument, the Union asserts that a vital part of its internal administration is to take measures to protect itself from liability and paying damages to a member or former member who brings claims against the Union. While we agree with the Union’s premise that protecting itself from liability is important and necessary for its internal administration, we disagree that prohibiting the Union from recording interferes with or prevents the Union from doing so.”

Kent County, 30 MPER ¶ 40 (Mich. ERC 2016).