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An employee with reasonable grounds for doing so may consult with his or her union representative prior to answering a question during an investigatory interview, the Pennsylvania Commonwealth Court has ruled in an issue of first impression. “Permitting [an employee] to consult with [a representative] does not deprive the commonwealth as an employer of its legitimate interest in maintaining some control over the investigatory process,” Senior Judge James J. Flaherty wrote in Commonwealth of Pennsylvania v. Pennsylvania Labor Relations Board. “It remains the employer’s prerogative to decide whether to conduct an investigatory interview with the employee at all, to choose the setting, to formulate the questions and to decide whether or not it will rely on the responses elicited from the employee.” According to Flaherty’s opinion, whether an employee has a reasonable basis for consulting with a representative will be determined by the totality of the circumstances, but examples of reasonable bases would include instances where a question is asked that could result in employee discipline, and where a question could be interpreted in more than one way. Judge Renee L. Cohn concurred in the result, and Judge Mary Hannah Leavitt rounded out the three-judge panel. The issue went before the court after the Pennsylvania State Corrections Officers Association, a bargaining unit comprised of Pennsylvania-employed corrections officers, filed a charge of unfair labor practices with the Pennsylvania Labor Relations Board, the opinion states. On Jan. 11, 2002, a representative of the state, Lt. George Funk, told corrections officer Todd Harris that he would be conducting fact-finding as part of an investigation into whether Harris was going to be disciplined for an alleged ethics violation committed when he reported being injured on the job, Flaherty said. An Officers Association representative, Clair H. Boring Jr., met with Harris prior to the fact-finding and represented him during the investigatory interview, the opinion states. At the interview, Funk asked Harris if he had ever had a back injury prior to the reported injury or if he had ever been treated for a back injury, Flaherty said. Before answering, Harris asked Funk if he could confer with Boring before responding. Funk said no. Harris then answered the question without speaking with Boring, the opinion states. And on Jan. 18, 2002, the Officers Association filed an unfair labor practices charge with the Labor Relations Board, alleging that the state had violated Harris’ rights under Sections 1201(a)(1) and (5) of the Public Employee Relations Act by refusing to permit Harris to consult with a union representative during an investigatory review. Ultimately, the board held that the commonwealth had violated Section 1201(a)(1), and the state appealed to the Commonwealth Court. The Commonwealth Court turned to National Labor Relations Board v. J. Weingarten Inc., a U.S. Supreme Court decision it identified as the seminal case on investigatory interviews. In Weingarten, a company employee was interviewed for suspicion of theft without a union representative present, though she had previously requested one. The Court held that employees are entitled to union representation in investigatory interviews based on the statutory guarantee that employees may act in concert for mutual aid and protection. The Court limited the right to situations where an employee reasonably believes an investigation might result in disciplinary action and where exercise of the right does not interfere with the employer’s legitimate prerogative to continue an investigation without interviewing the employee. Because there were no Pennsylvania cases on point, the Commonwealth Court continued its consideration of the case by following national precedent. The court deemed a National Labor Relations Board decision — System 99 & Walter Manning — controlling. The worker in Manning had been denied private consultation with a union representative during a disciplinary interview. The board determined that Manning’s employer should have provided him with an opportunity to confer with the representative once Manning requested permission to do so. The Commonwealth Court found the language of that decision persuasive. “The NLRB concluded that ‘by denying to Walter Manning the right to consult privately with a fellow employee before deciding how to respond to [his employer's] request that he take a sobriety test, [the employer] has interfered with, restrained, and coerced an employee … and thereby has engaged in … unfair labor practices,’” Flaherty said, quoting from the case before applying it to the matter at hand. “The [Pennsylvania Labor Relations] Board in the present controversy has made a fair and reasoned decision that does not exceed the reach of its authority under PERA,” Flaherty concluded. Lisa Essman of the Pennsylvania Office of Administration in Harrisburg is listed as the attorney for the state. Jennifer Will and James Crawford of the PLRB are listed as representation for the board. Stephen Holroyd, Thomas Jennings and Marc Gelman of Jennings Sigmond in Philadelphia are listed as counsel for the Officers Association.

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