Probationers entitled to representation by union during questioning |
On Board Online • November 22, 2010
By Kimberly A. Fanniff
Associate Counsel
All public employees in New York covered by the Public Employees’ Fair Employment Act, including those holding probationary, provisional and temporary appointments under the Civil Service Law, are entitled to union representation during interviews the employee reasonably believes may lead to discipline, according to a recent decision by the Public Employment Relations Board (PERB).
In New York State Correctional Officers and Police Benevolent Association, Inc. v. State of New York, the union filed an improper practice charge after a probationary corrections officer was denied union representation during an interview following a suicide attempt by a prisoner under the officer’s supervision. After the investigation, the officer was placed on paid administrative leave for three weeks.
The right to representation during questioning, also known as Weingarten rights, was recognized in 1975 for private sector employees by the U.S. Supreme Court based on language in the National Labor Relations Act (NLRA). In 2007 the New York State Court of Appeals, the state’s highest court, ruled that public employees were not entitled to such union representation under New York law.
But the Legislature subsequently adopted Civil Service Law Section 209-a(1)(g), which provides that an employer commits an improper practice if the employer denies an employee the right to representation during interviews that the employee reasonably believes may lead to disciplinary action. The amendment also provides that an employer may assert an affirmative defense to a claim of improper practice if it can show that the employee had the ability to petition to exclude the evidence on the basis of lack of union representation.
In this case, the state argued that the improper practice amendment only applied to permanent employees, who under Civil Service Law Section 75, have the right to representation during interviews when it appears the employee may be subject to disciplinary action. According to the state, the officer was not entitled to representation during questioning because he was still a probationary employee and therefore subject to removal at any time for any reason.
PERB disagreed, finding the amendment granted representational rights to “public employees,” a phrase defined in the Civil Service Law to include “any person holding a position by appointment or employment in the service of a public employer…” Also, the state’s characterization of probationary employees as not subject to discipline was unfounded as courts have continuously held probationary employees can be subject to discipline for misconduct or incompetence. Thus PERB found Section 209-a(1)(g) was intended to grant representational rights to all public employees including those holding probationary, provisional and temporary appointments under the Civil Service Law.
PERB pointed out that the right to representation will not attach in most cases to verbal interactions with an employee during a meeting that is “limited to counseling, training, evaluations and updates on job assignments.” In determining whether the employee reasonably believed he or she was subject to possible discipline, the board will examine the objective facts including but not limited to “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.”
PERB determined the state’s actions violated the corrections officer’s right to representation and ordered the state to destroy all documents in the employee’s personnel file, the investigatory notes, memoranda, e-mail and reports which may contain information from the interview where the officer was denied representation. PERB also ordered the state to reconsider its counseling and placement of the officer on administrative leave without regard to the tainted information and, if appropriate, modify his date of permanent appointment.