By Jim Cline and Jordan L. Jones
In Prince George’s County v. Prince George’s County Police Civilian Employees Association, a Maryland appellate court vacated an arbitrator’s decision which had reinstated a civilian employee with the Prince George’s County Police Department. The Court rejected the arbitrator’s conclusion that the civilian employee must be informed of his right to have a Union representative present before being subjected to questioning that may lead to discipline by the County. The Court stated that expanding the requirement of Weingarten rights to “employees that are the focus of a criminal investigation violated public policy.”
In this case, the employee was called into work on his off-day after a detective reported that her firearm was missing and was possibly stolen from the women’s bathroom at police headquarters. In the course of the investigation for the missing firearm, the employee was interrogated by over a dozen detectives for approximately fourteen hours. At no point during the interrogation was the employee provided his Weingarten rights and the employee was never connected to the missing firearm. In the course of the investigation, though, a volunteer with the County alleged that the employee had previously impersonated an officer and the employee was asked about this allegation during the interrogation.
The employee was subsequently terminated by the County and then reinstated by an arbitrator with a 30-day suspension. The arbitrator held that the detectives who questioned the employee violated the CBA because they did not first provide notice of his rights that are required under the CBA. Specifically, the CBA required that an employee who is subject to an investigatory interview that may result in discipline be first informed of his right to have a Union representative present during questioning.
On appeal, the County contended that “the decision that officers in the Department are obligated to inform union members of their Weingarten rights while conducting a criminal investigation violates public policy” It also held that the “expansion of Weingarten interferes with a public agency’s statutory duties to detect and investigate criminal conduct.”
The Court noted that under NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), “employees must be provided certain procedural protections and the right to have union representation present when they are subject to an investigation or question that may result in discipline.” However, the Court held that expanding this “requirement of Weingarten rights to union employees that are the focus of a criminal investigation violated public policy.”
The Court cited two previous decisions —from New York and Illinois — where courts had concluded that imposing CBA requirements on criminal investigations violated public policy. The Court held that, as in the Illinois and New York cases, the arbitrator’s decision in this case “constrains the ability of the . . . police department to conduct criminal investigations and interrogations of their union members.” The Court vacated the arbitrator’s decision.
This is an odd conclusion. Requiring the employer to provide Weingarten notification to an employee subject to a criminal interview does not, as this court asserted, impair the employers “right” to conduct a criminal interview: There is no such “right.”
Here, as required, the interviewer issued a Miranda warning. Under the 5th and 6th amendment the employee had a right to demand legal counsel and remain silent. Once those rights are asserted the employer has no right (absent a Garrity order) to require or compel the employee to keep talking. This court’s conclusion that it violates public policy for a CBA to require an employer to provide a Weingarten notice on the grounds that it interferes with the agency’s law enforcement functions lacks logic and understanding of the context of such employee interviews. All the CBA Weingarten notice requirement did was supplement the existing notice requirement under Miranda for legal counsel.
Most law enforcement CBA’s don’t specifically require a Weingarten notice in this context so this was an unusual term. But many Bill of Rights do require that the employer tell the employee that the investigation is in fact criminal and advise them of their Miranda rights.
We have previously discussed the very limited role courts have in overturning arbitration awards. Just because a court does not like the CBA terms or an arbitrators conclusion does not provide them grounds for vacating an arbitration award. It will be interesting to see whether other courts follow or reject this court’s approach.
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