October: Labor And Employment News & Articles

Weingarten Rep Should Have Been Allowed To Caucus With Member During Interview

May 10, 2024

Robert Hendricks is the local vice president of the Pennsylvania State Corrections Officers Association (PSCOA) at Progress Community Corrections Center (PCCC). In February 2021, Lieutenant Allen Lynch summoned Corrections Monitor Jason Henry to an investigative interview regarding allegations of racially insensitive remarks. Henry requested that Robert Hendricks be present at the interview as his Weingarten representative. PCCC granted the request and permitted Henry and Hendricks to have a private caucus before beginning the interview. PCCC explained that the purpose of the interview was to investigate whether Henry made a racially insensitive remark, as alleged by a coworker. Henry denied the allegation, and requested another caucus with Hendricks, which was granted. When they returned, the focus of the interview switched to Henry’s credibility, and whether he was telling the truth to PCCC representatives. At one point, Hendricks requested another caucus, which was denied. Ultimately, PCCC determined that Henry had made the insensitive remark and issued him a written reprimand. PSCOA filed an unfair labor practice charge with the state labor board, alleging that PCCC improperly denied Hendricks’ request for a private caucus. After a hearing, the labor board’s hearing examiner agreed with PSCOA. The Pennsylvania Department of Corrections (DOC) appealed, arguing that only the employee – and not his union representative – has the right to request a private caucus, and that Hendricks exceeded the bounds of his role during the investigatory interview by doing so. The labor board was not persuaded and upheld the hearing examiner’s decision. DOC appealed again to the Commonwealth Court, which interpreted Weingarten to permit both the individual being questioned and the union representative to request a caucus once the employer engaged in a new line of questioning which could lead to additional or different discipline: “We conclude that the broad language from Weingarten discussing employee rights is applicable here. 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. 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.”

Department of Corrections v. Pennsylvania Labor Relations Board, No. 1369 C.D. 2022, 2024 WL 188343 (Pa. Commw. Ct.).

State Retaliated Against President’s Protected Union Activity

December 8, 2023

Jonathan Wyant is a Wildlife Conservation Officer (WCO) with the Pennsylvania Game Commission (PGC). He also served as the president of his FOP lodge from 2016 through 2022, during which he was actively involved in contract negotiations, interest arbitrations, and processing grievances. One grievance related to the PGC Tracking Team – a special unit tasked with pursuing fugitives. In 2016, PGC officers had a dispute with then-Chief of Enforcement Jason DeCoskey. At the time, PGC was requiring members of the Tracking Team to attend 10-12-hour trainings without compensation. Wyant filed a grievance over PGC’s failure to compensate Tracking Team members during mandatory trainings, which briefly led to the Tracking Team’s disbandment. Wyant filed a charge of unfair labor practices over the dis-

bandment, and the parties ultimately reached a settlement, which involved the reconstitution of the Tracking Team. Several years later, in 2022, PGC posted a job vacancy for the position of Wildlife Conservation Officer Law Enforcement Coordinator (LEC). DeCoskey had since been promoted to Director of Wildlife Protection and had the ultimate authority to select the applicant for the LEC position. Wyant was the only qualified applicant for the LEC position in the August 25 through September 8, 2022, window, but did not receive any notice of an interview. On September 7, 2022, DeCoskey asked PGC’s Human Resources Analyst, Ashley Boylan, to repost the LEC position and include the additional requirement that the applicant possess a valid driver’s license. Boylan emailed DeCoskey on September 9, telling him that Wyant was the only applicant. DeCoskey later claimed that he did not know that Wyant applied for the LEC at this time. Boylan and Wyant later testified that they could not recall any time when a position was reposted after an application was received from a qualified bargaining unit member. DeCoskey claimed to recall two occasions where a position was reposted under these circumstances but could not identify precisely which positions and when. Boylan reposted the LEC position with an identical description, except for the addition of the driver’s license requirement. Wyant applied again, along with WCO Scott Frederick. Wyant was clearly a more qualified candidate than Frederick – he had substantially better performance reviews, and more seniority. Wyant was also suspicious of the reposting, and contacted Boylan, who confirmed that the LEC position was reposted at DeCoskey’s request in order to “deepen the applicant pool.” Wyant contacted Frederick to explain that he was going to file an unfair labor practice charge for the reposting of the LEC position, and that if he succeeded, it could impact Frederick’s eligibility. Frederick contacted DeCoskey, explained the situation, and asked for clarity as to whether he would be dislodged from the LEC position if he were promoted and Wyant subsequently won his unfair labor practice litigation. Frederick further explained that he did not interpret Wyant’s statements to be threatening or discouraging. Ultimately, both men were interviewed, DeCoskey selected Frederick for the LEC position, and Wyant received a verbal counselling for communicating with Frederick in an “intimidating, threatening or interfering” way. Wyant filed a complaint with the Pennsylvania Labor Relations Board (Board), alleging that PGC retaliated against him for his protected activity as the union president. PGC argued that it legitimately hired Frederick for the LEC position because he had a background in procurement. The Board rejected PGC’s position: “The Commonwealth’s puzzling reasons for why it selected Frederick over Wyant are further amplified by a simple comparison of the candidates. By any objective measure, Wyant was certainly the superior applicant. Wyant interviewed extremely well, had more seniority than Frederick, far better performance reviews than Frederick, and possessed a year of experience performing the much-desired purchasing and procurement duties for the PGC, which he could have recited had he sim-ply been questioned about it during the interview. Moreover, there is no evidence that

Wyant had any disciplinary issues, which would have significantly affected his candidacy. If the PGC really had legitimate concerns regarding Wyant’s performance and conduct as an employe, it is curious why his performance reviews and disciplinary record are devoid of any such instances. On these facts, then, it must be concluded that the reasons proffered by the PGC for reposting the LEC position in September 2022 were manufactured to mask the true motivation behind the action, i.e., that the PGC harbored unlawful, anti-union animus.” The Board further held that PGC’s discipline of Wyant for his call to Frederick violated state labor law, because it was also retaliation for protected action. Wyant’s call to Frederick was protected because it involved two bargaining unit members discussing an upcoming unfair labor practice charge. Frederick never complained of any harassing behavior by Wyant, and it was unreasonable for Wyant to be disciplined on that basis under the circumstances. Among other things, the Board ordered PGC to make Wyant an unconditional offer for the LEC position and make him whole, with interest.

FOP PA Conservation Police Officers Lodge 114 v. Commonwealth of PA, 55 PPER ? 20 (Pennsylvania L.R.B. Hearing Examiner’s Decision 2023).