IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Department of Corrections, :
Petitioner :
:
v. :
:
Pennsylvania Labor Relations Board, : No. 1369 C.D. 2022
Respondent : Argued: December 4, 2023
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION
BY JUDGE FIZZANO CANNON FILED: January 18, 2024
The Department of Corrections (Employer) petitions for review of a
Final Order of the Pennsylvania Labor Relations Board (Board) issued in
Pennsylvania State Corrections Officers Association v. Pennsylvania Department of
Corrections, No. PERA-C-21-20-E (Nov. 15, 2022) (Final Order). The Board
concluded that Employer violated Section 1201(a)(1) of the Public Employe
Relations Act (PERA),1 43 P.S. § 1101.1201(a)(1),2 by refusing a union representative’s
request for a private caucus with an employee when a new line of inquiry arose
during an investigative interview. Upon review, we affirm the Board’s Final Order.
1
Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101-1101.2301.
Section 1201(a)(1) prohibits public employers from “[i]nterfering, restraining or coercing
2
employes in the exercise of the rights guaranteed in [the PERA].” 43 P.S. § 1101.1201(a)(1).
I. Background
Jason Henry (Employee) serves as a Corrections Monitor at Progress
Community Corrections Center (PCCC). Final Order at 1. In February 2021, Allen
Lynch (Security), a Security Lieutenant at PCCC, summoned Employee to an
investigative interview on behalf of Employer concerning allegations that Employee
had made racially insensitive remarks to coworkers. Id.
Before the interview began, Employee asked that Robert Hendricks
(Union Representative), the local vice president of the Pennsylvania State
Corrections Officers Association (Union),3 be present as Employee’s Weingarten4
representative. Final Order at 1. Security granted the request, advised Employee
and Union Representative of the purpose of the interview, and allowed them to have
a private caucus before starting the interview. Id.
The initial focus of the interview was on whether Employee had
actually made the alleged remarks to his coworkers. Final Order at 4. After
answering the first question in the interview, Employee requested a further private
caucus with Union Representative, which was granted. Final Order at 2. Employee
did not request any additional private caucus during the rest of the interview. Id.
However, at some point during the interview, Security asked Employee why his
coworkers would report that he had made the alleged racially insensitive remarks if
he did not recall making them; at that point, the focus of the interview shifted from
3
Union has intervened as a party before this Court.
4
In National Labor Relations Board v. Weingarten, Inc., 420 U.S. 251 (1975), the United
States Supreme Court held that employees have the right to union representation at investigatory
interviews that they reasonably believe may result in discipline. The Pennsylvania Supreme Court
has recognized, with approval, the Board’s adoption of the Weingarten rule as applicable to PERA
cases. Pa. Off. of Admin. v. Pa. Lab. Rels. Bd., 916 A.2d 541, 547, 551 (Pa. 2007).
2
what Employee said to whether Employee was truthful and credible in answering
Security’s interview questions. Id. at 2 & 4. Union Representative requested a
private caucus with Employee, which was denied. Id. at 2. The interview continued
thereafter until Employee had answered all of Security’s questions. Id. Employer
subsequently found the coworkers’ allegations to be substantiated and issued
Employee a written reprimand. Id.
The Union thereafter filed an unfair labor practice charge asserting that
Employer violated Section 1201(a)(1) of the PERA by denying Union
Representative’s request to caucus with Employee during the investigative
interview. Final Order at 2. Following a hearing held in August 2021, a Hearing
Examiner concluded that Employer had violated Section 1201(a)(1) by refusing to
allow Employee to caucus with his Weingarten representative.5 Id.
Employer filed exceptions with the Board, arguing that Security
properly refused a caucus request by a Weingarten representative because any such
request must be made by the employee personally. Final Order at 3. The Board
rejected Employer’s argument, reasoning:
The fact that . . . [Union Representative] made the request
to caucus does not destroy . . . [Employee’s] right to confer
with his Weingarten representative. Once the request for
a Weingarten representative is made and has been granted,
the Weingarten representative steps into the interview with
certain statutory rights to provide mutual aid and
protection, assistance and representation, as permitted by
law on behalf of the employe[e].
Id.
5
However, the discipline imposed on Employee was not based on information obtained in
the investigatory interview. Final Order at 3. Accordingly, the Hearing Examiner issued a cease
and desist order but did not provide any remedial relief. Id.
3
Employer also asserted that Union Representative, in his caucus
request, exceeded the scope of his role as a Weingarten representative by attempting
to transform the investigative interview into an adversarial proceeding. Final Order
at 4. The Board rejected this assertion as well, explaining:
It is the function of the [H]earing [E]xaminer, who is in a
position to view the witnesses’ testimony first-hand, to
determine the credibility of witnesses and to weigh the
probative value of the evidence presented at the hearing
. . . . The [H]earing [E]xaminer may accept or reject the
testimony of any witness in whole or in part . . . . The
Board will not disturb the Hearing Examiner’s credibility
determinations absent the most compelling of
circumstances . . . .
In this case, the Hearing Examiner did not credit the
testimony of [Employer’s witnesses] concerning the
alleged adversarial conduct of . . . [Union Representative]
during the investigatory interview. The Hearing Examiner
concluded that . . . [Union Representative’s] request to
caucus with . . . [Employee] during the investigatory
interview was reasonable and that the request [did] not
transform the interview into an adversarial contest, nor
would it deprive [Employer] of its ability to control the
investigation . . . . [Employer] has failed to present
compelling reasons to warrant reversal of the Hearing
Examiner’s credibility determinations . . . .
Id. (internal quotation marks and citations omitted).
Ultimately, the Board dismissed Employer’s exceptions, concluding:
[Security’s] question regarding why . . . [Employee’s]
coworkers would report that he made racially insensitive
comments if, in fact, he did not make such remarks
changed the focus of the interview. Thus, the Hearing
Examiner found that the question posed to . . . [Employee]
for which a consultation was sought was a substantial
question regarding his veracity which could lead to
additional discipline.[]
4
When the questioning of . . . [Employee] deviated from
whether he made the alleged racist remarks, to an inquiry
as to the truthfulness of his answers, the new line of
questioning triggered . . . [Employee’s] right to confer
with his [U]nion [R]epresentative prior to answering the
question . . . . Therefore, it was permissible for . . . [Union
Representative], as the Weingarten representative, to
request a caucus with . . . [Employee] prior to answering
the question to adequately provide assistance and
knowledgeable representation with regard to the new line
of inquiry . . . .
Final Order at 4-5 (citing Pac. Tel. & Tel. Co. v. Nat’l Lab. Rels. Bd., 711 F.2d 134,
137 (9th Cir. 1983) (Pacific Telephone) (holding that “once union representation has
been afforded, the representative may speak for the employee he represents and
either the union representative or the employee may make the request for [a] pre[-
]interview conference”)) (emphasis added) (footnote and additional citations
omitted).
II. Issue
On appeal,6 Employer does not challenge Employee’s right to a
Weingarten representative at the investigative interview. Moreover, as the Board
observed, Employer “did not except to the Hearing Examiner’s conclusion that . . .
[Security’s] question concerning the veracity of . . . [Employee] fundamentally
changed the nature of the interview . . . .” Final Order at 4 n.2. Thus, Employer
does not dispute that the private caucus request would have been appropriate if made
by Employee himself. Therefore, the sole issue for our review is the legal question
6
Our review of a final order of the Board is limited to determining whether the Board
committed an error of law or violated constitutional rights or whether necessary findings of fact
were supported by substantial evidence. Com. v. Pa. Lab. Rels. Bd., 826 A.2d 932, 933 n.2 (Pa.
Cmwlth. 2003) (citing Harbaugh v. Pa Lab. Rels. Bd., 528 A.2d 1024 (Pa. Cmwlth. 1987)).
5
of whether a Weingarten representative may request a private caucus at an
appropriate point during an investigative interview or whether such a request must
come from the employee personally.
III. Discussion
The seminal case establishing the right to a union representative during
an investigatory interview is National Labor Relations Board v. Weingarten, Inc.,
420 U.S. 251 (1975). In Weingarten, the United States Supreme Court upheld a
decision of the National Labor Relations Board (NLRB) that an employer violated
an employee’s rights under the National Labor Relations Act (NLRA)7 by denying
her request to have a union representative present during an investigative interview
that could have led to discipline.
The parties do not dispute that the rationale of Weingarten applies to
cases arising under the PERA. See Off. of Admin. v. Pa. Lab. Rels. Bd., 916 A.2d
541, 547, 551 (Pa. 2007). They do not dispute that employee rights arising under
Weingarten include an employee’s right to request a private caucus with a union
representative where appropriate; nor do they dispute that the caucus request at issue
here would have been appropriate if made by Employee himself. See, e.g., Com. v.
Pa. Labor Rels. Bd., 826 A.2d 932, 934-36 (Pa. Cmwlth. 2003) (explaining that an
employee has a right to have union representation in an investigatory interview and
to consult with that representative before answering a question asked in the interview
“when a significant question is asked such as one that could result in the discipline
of the employee or when the question asked may be interpreted in more than one
way”) (citations omitted). Rather, the parties’ dispute relates solely to the effect of
7
29 U.S.C. §§ 151-168.
6
Weingarten on the issue presented here. Employer insists that Weingarten provides
only a limited right to union representation and that only the employee, not the union,
may request such representation, including a private caucus with a union
representative. The Board and the Union counter that a right to a private caucus is
part of the right to have a union representative present during an interview to protect
an employee’s rights; therefore, it does not matter whether a caucus request comes
from the employee or the union representative.
In Weingarten, an employee was interviewed concerning two different
accusations of wrongdoing, both of which were ultimately determined to be
unfounded. 420 U.S. at 254-56. The employee requested the presence of a union
representative in relation to both accusations, but her employer denied both requests.
Id. Thus, unlike the instant matter, Weingarten did not relate specifically to a caucus
request, and there was no attempt by a union representative to invoke rights on behalf
of an employee. Accordingly, we must determine what guidance, if any, the
Supreme Court’s analysis in Weingarten provides here.
Quoting with approval a decision of the NLRB, the Supreme Court in
Weingarten observed:
[I]t is a serious violation of the employee’s individual right
to engage in concerted activity by seeking the assistance
of his statutory representative if the employer denies the
employee’s request and compels the employee to appear
unassisted at an interview which may put his job security
in jeopardy. Such a dilution of the employee’s right to act
collectively to protect his job interests is . . . unwarranted
interference with his right to insist on concerted protection,
rather than individual self-protection, against possible
adverse employer action.
420 U.S. at 257 (internal citations and quotation marks omitted). The Court went on
to state, however, that “the right arises only in situations where the employee
7
requests representation. In other words, the employee may forgo his guaranteed
right and, if he prefers, participate in an interview unaccompanied by his union
representative.” Id. Employer seizes upon this latter language in Weingarten as the
basis for its insistence that only the employee himself, not his union representative,
may request a private caucus.
As this Court has explained, “[w]hen there are no Pennsylvania cases
on point, we have been encouraged by the Supreme Court of Pennsylvania to follow
the NLRB cases interpreting provisions of the NLRA similar to the PERA.” Com.
v. Pa. Lab. Rels. Bd., 826 A.2d at 934 (citing Appeal of Cumberland Valley Sch.
Dist., 394 A.2d 946 (Pa. 1978)). Here, although there is no prior decision on point
under the PERA, the United States Court of Appeals for the Ninth Circuit addressed
an analogous issue under the NLRA in Pacific Telephone. There, in two
consolidated cases, union representatives attending investigative interviews with
employees requested private caucuses with the employees before the interviews, but
the employer denied both requests. 711 F.2d at 135-36. The NLRB found that the
employer had violated the employees’ rights under Weingarten by denying the
caucus requests. Id. at 136.
On appeal, the employer in Pacific Telephone, like Employer here,
pointed to the language in Weingarten stating that an employee’s right to
representation in an investigative interview “arises only in situations where the
employee requests representation.” Weingarten, 420 U.S. at 257, cited in Pac. Tel.,
711 F.2d at 137. The employer argued that the quoted language required, by
extension, that the employee, not the union representative, must assert any caucus
request. Pac. Tel., 711 F.2d at 137. The Court of Appeals squarely rejected that
argument, explaining:
8
The . . . question presented by the petition is whether the
request for a conference must come from the employee
himself. Here, . . . the request came from the union
representative . . . . [T]he Supreme Court has stated that
the right to union representation at an investigatory
interview as defined by the [NLRB] is a right which must
be requested by the employee and which the employee
may choose to forego [sic]. See Weingarten, 420 U.S. at
257. We read this to mean that the employer need not
suggest that the employee have union representation and
not, as Pacific Telephone argues, that only the employee
himself may so request. In our judgment, once union
representation has been afforded, the representative may
speak for the employee he represents and either the union
representative or the employee may make the request for
pre-interview conference.
Id.
We find Pacific Telephone persuasive here. Weingarten contains
sweeping language supporting employee rights to union representation and
participation, at least to some extent, in employer interviews. The Weingarten
Court observed:
[A]n employee in seeking to have the assistance of his
union representative at a confrontation with his employer
[has] the right . . . to engage in . . . concerted activities for
the purpose of . . . mutual aid or protection . . . . This is
true even though the employee alone may have an
immediate stake in the outcome; he seeks []aid or
protection[] against a perceived threat to his employment
security. The union representative whose participation he
seeks is, however, safeguarding not only the particular
employee’s interest, but also the interests of the entire
bargaining unit by exercising vigilance to make certain
that the employer does not initiate or continue a practice
of imposing punishment unjustly.[] The representative’s
presence is an assurance to other employees in the
bargaining unit that they, too, can obtain his aid and
protection if called upon to attend a like interview.
....
9
Requiring a lone employee to attend an investigatory
interview which he reasonably believes may result in the
imposition of discipline perpetuates the inequality the
[NLRA] was designed to eliminate, and bars recourse to
the safeguards the [NLRA] provided to redress the
perceived imbalance of economic power between labor
and management . . . .
....
A single employee confronted by an employer investigating
whether certain conduct deserves discipline may be too
fearful or inarticulate to relate accurately the incident
being investigated, or too ignorant to raise extenuating
factors. A knowledgeable union representative could assist
the employer by eliciting favorable facts, and save the
employer production time by getting to the bottom of the
incident occasioning the interview. Certainly his presence
need not transform the interview into an adversary contest
....
Weingarten, 420 U.S. at 260-63 (internal footnote, citations, and quotation marks
omitted).
We conclude that the broad language from Weingarten discussing
employee rights is applicable here. In particular, we are persuaded by the Supreme
Court’s suggestions that a union representative’s presence includes participation and
that an unrepresented employee may be led by fear or ignorance to fail to protect his
own rights. A knowledgeable union representative is indispensable in such
circumstances, yet requiring such a representative to stand mute when the
employee’s right should be asserted is tantamount to denying representation
altogether. Accordingly, consistent with our Supreme Court’s recommendation to
follow NLRB cases interpreting provisions of the NLRA similar to the PERA, we
hold that a Weingarten representative has a right to request a private caucus with an
employee to the same extent that the employee himself could make such a request.
10
To the extent that Employer suggested Union Representative’s request
was properly denied because he was adversarial or disruptive in requesting a private
caucus with Employee during Employer’s investigative interview, the Hearing
Examiner found that assertion not credible, as set forth above. Absent any such
inappropriate conduct, Union Representative was entitled as Employee’s
representative to request a private caucus at appropriate times. Specifically, in this
case, Union Representative, as well as Employee, had the right to request a caucus
at the point of the interview where the subject matter of the questions shifted to a
new issue not the subject of a previous caucus, and which could have resulted in
additional discipline.
Moreover, to the extent Employer suggests that allowing a union
representative to request a private caucus when the focus of an interview shifts to a
new issue will expand the current status of employee rights, we acknowledge the
United States Supreme Court’s approval in Weingarten of the NLRB’s “evolutional
approach” to interpreting and applying the NLRA in changing employment climates:
[I]ts earlier precedents do not impair the validity of the
[NLRB’s] construction . . . . The use by an administrative
agency of the evolutional approach is particularly fitting.
To hold that the [NLRB’s] earlier decisions froze the
development of this important aspect of the national labor
law would misconceive the nature of administrative
decisionmaking. Cumulative experience begets understanding
and insight by which judgments . . . are validated or
qualified or invalidated. The constant process of trial and
error, on a wider and fuller scale than a single adversary
litigation permits, differentiates perhaps more than
anything else the administrative from the judicial process.
....
It is the province of the [NLRB], not the courts, to
determine whether or not the need [for further
interpretation] exists in light of changing industrial
11
practices and the [NLRB’s] cumulative experience in
dealing with labor-management relations. For the
[NLRB] has the special function of applying the general
provisions of the Act[NLRA] to the complexities of
industrial life . . . , and its special competence in this field
is the justification for the deference accorded its
determination . . . . Reviewing courts are of course not to
stand aside and rubber stamp [NLRB] determinations that
run contrary to the language or tenor of the [NLRA]. But
the [NLRB’s] construction here, while it may not be
required by the [NLRA], is at least permissible under it,
and insofar as the [NLRB’s] application of that meaning
engages in the difficult and delicate responsibility of
reconciling conflicting interests of labor and management,
the balance struck by the [NLRB] is subject to limited
judicial review . . . . In sum, the [NLRB] has reached a
fair and reasoned balance upon a question within its
special competence, its newly arrived at construction of
[the NLRA] . . . .
Weingarten, 420 U.S. at 265-67 (internal citations and quotation marks omitted).
This analysis is equally applicable to the Board’s statutory rights and
duties in interpreting and applying the PERA. See Com. v. Pa. Labor Rels. Bd., 826
A.2d at 936 (stating that “[t]he responsibility to adapt [the] PERA to changing
patterns of industrial life is entrusted to the Board” and citing Weingarten, 420 U.S.
at 266). Accordingly, the absence of prior Board decisions addressing the right of a
Weingarten representative was no impediment to the Board’s authority to do so here,
and the Board was within its discretion to conclude that Union Representative
properly requested a private caucus with Employee in the circumstances of this case,
i.e., where the interview’s focus shifted to a new issue that could result in additional
discipline.
12
IV. Conclusion
Based on the foregoing discussion, we affirm the Board’s Final Order.
___________________________________
CHRISTINE FIZZANO CANNON, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Department of Corrections, :
Petitioner :
:
v. :
:
Pennsylvania Labor Relations Board, : No. 1369 C.D. 2022
Respondent :
ORDER
AND NOW, this 18th day of January 2024, the Final Order of the
Pennsylvania Labor Relations Board dated November 15, 2022 is AFFIRMED.
___________________________________
CHRISTINE FIZZANO CANNON, Judge