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The Pennsylvania Labor Relations Board had the power to order an employer to make whole an employee who was fired after illegally being denied the right to union representation during a meeting, the Commonwealth Court has ruled. Although the ruling was contrary to proposed decisions by the board’s hearing examiners, the three-judge panel in Commonwealth v. Pennsylvania Labor Relations Board said the board is not bound by those decisions. “The remedy fashioned by the board is not unreasonable, outside of the board’s powers or inconsistent with prior court decisions, and accordingly the court will not interfere with it,” Commonwealth Court Judge Doris A. Smith said in the opinion. The suit was brought by William O’Donnell, an employee of Pennsylvania Emergency Management Agency. In April 1998 PEMA hired O’Donnell on a temporary basis for a position that was set to expire in December of that year. O’Donnell’s position was included in the bargaining unit of the American Federation of State, County and Municipal Employees, Council 13. In June, Deborah Johnston, PEMA’s team leader for Western Pennsylvania called O’Donnell into a meeting that included his immediate supervisor and PEMA’s personnel director, Rita Breitenbach. Breitenbach told O’Donnell the purpose of the meeting was to discuss his job performance. O’Donnell asked to have a union representative present. Breitenbach told him he could not. During the meeting, Johnston explained the inadequacies of O’Donnell’s work performance and questioned him on certain technical aspects of his job. O’Donnell provided answers to the questions. The managers and supervisors then held a private meeting and returned to tell O’Donnell his employment was being terminated. A termination letter later sent to O’Donnell stated: “a meeting concerning your level of performance was held to afford you an opportunity to hear and discuss your side of the specifics of your unsatisfactory work performance.” The letter went on to say that O’Donnell’s responses were unsatisfactory. The union filed a charge of unfair labor practices with the Pennsylvania Labor Relations Board alleging PEMA violated the Public Employee Relations Act by denying O’Donnell union representation during the meeting. A hearing examiner found PEMA had not committed an unfair labor practice. The examiner said there was no need for a union representative to be present at the meeting because the meeting was not investigatory. The examiner said the sole purpose of the meeting was to tell O’Donnell he was being terminated. The union did not file exceptions, but O’Donnell filed a petition to intervene along with exceptions. The board concluded the meeting was, in fact, investigatory, relying in part on the termination letter, and reversed the hearing examiner’s ruling. The board also ordered PEMA to make O’Donnell whole for all lost wages and benefits from the date of his termination to the date his position was to expire. PEMA appealed to the Commonwealth Court. WEINGARTEN RIGHTS Smith said a public employee who is covered by a collective bargaining agreement has the right to the presence of a union representative at an investigatory interview with his or her employer if the employee reasonably believes the meeting could result in disciplinary action. Those rights, Smith said, are referred to as an employee’s “ Weingarten rights” because the principle was created in the 1975 U.S. Supreme Court case National Labor Relations Board v. J. Weingarten Inc. If the meeting between O’Donnell and his superiors were to qualify as an investigatory interview, thereby attaching Weingarten rights, it must have been “calculated to form the basis for taking disciplinary or other job-affecting actions against O’Donnell because of past misconduct,” Smith said. PEMA argued the letter could not be used to determine the purpose of the meeting because it was drafted before the meeting. Therefore, PEMA argued, it could not have taken into consideration what actually happened at the meeting. But Smith said the board properly concluded that the letter said O’Donnell would be provided an opportunity at the meeting to respond to the allegations of unsatisfactory job performance. “One obvious alternative for PEMA following the interview and the private recess session was for the employer not to discharge O’Donnell and withhold the letter if his responses were unsatisfactory,” the board explained in its order. MAKING WHOLE PEMA also argued it should not have to make O’Donnell whole. PEMA said the only proper remedy for violating Weingarten rights is for the board to issue an order for an employer to cease and desist its unfair labor practice. The board had said its decision was consistent with the National Labor Board’s 1980 decision in Kraft Foods Inc. “Under Kraft Foods, once a Weingarten violation has been established, the burden shifts to the employer to establish that it did not impose the discipline based upon information that it obtained at the unlawful interview,” Smith said. “If the employer fails to carry that burden, then a conventional make-whole order will be issued.” The board recognized that the Kraft Foods decision was overruled by Taracorp Industries in 1984, but declined to follow it. PEMA agreed the board was not required to follow NLRB precedent, but argued its order to make O’Donnell whole was inconsistent with its own precedent, relying on two proposed decisions. Smith said the board is not bound by proposed decisions, although “the board should not disregard consistent trends in the work of its hearing examiners.” O’Donnell’s case was the first in which the board addressed in a final order the proper remedy for an employee terminated as a result of an unlawful interview, Smith said, and the decision it made was a good one. “The board was properly cognizant of the proposed decision in which hearing examiners had reached conclusions contrary to Kraft Foods, but the board chose not to follow those proposed decisions, as was its prerogative,” Smith said.

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