WORKPLACE INVESTIGATIONS: Garrity and Weingarten RIGHTS AND LIMITS Anil Karia Public Safety Labor Group anil@pslglawyers.com 866-486-5556 Ursula Kienbaum Ogletree Deakins Nash Smoak & Stewart, P.C. ursula.kienbaum@ogletreedeakins.com 503-552-2171 * We want to acknowledge the contributions of Will Aitchison, Howard Rubin, and Patricia Haim to the content of this presentation.

The big question today: In 1967, there was Garrity v. New Jersey, a criminal case dealing with when statements are “compelled” for Fifth Amendment purposes. In 1975, there was Weingarten v. NLRB, a private-sector labor law case about the right to representation in disciplinary interviews. The big question today: How do these two cases knit together to create the framework for public employee’s procedural rights in the disciplinary process?

A Factual Scenario An employee at an out of town, employer- sponsored training complains to her employer that a co-worker sexually assaulted her in her hotel room in the middle of the night. The employee also filed a complaint with the law enforcement agency where the training occurred. The employer begins to investigate the conduct. The local law enforcement agency starts its investigation. The two employees are placed on administrative leave and the male employee discusses the incident with a union representative.

Is There a Privilege That Protects the Statements to the Union Representative? “The union-relations privilege we recognize today under PERA extends to communications made: (1) in confidence; (2) in connection with representative services relating to anticipated or ongoing disciplinary or grievance proceedings; (3) between an employee (or the employee's attorney) and union representatives; and (4) by union representatives acting in official representative capacity. The privilege may be asserted by the employee or by the union on behalf of the employee. Like the attorney-client privilege, the union-relations privilege extends only to communications, not to underlying facts.” Peterson v. State, 280 P3d 559 (Alaska 2012).

“Employees engage in PECBA-protected activity when they talk with their union representatives or other bargaining unit members about their workplace concerns. . . . Maintaining the confidentiality of such discussions furthers the policies underlying the PECBA. . . . An employer’s inquiry into discussions between employees and their exclusive bargaining representative is a form of surveillance, and the employer has no legitimate reason for such inquiries.” AFSCME Local 189 v. Portland, UP 7-07, 22 PECBR 752, 797-801 (2008) (internal citations omitted).

The Factual Scenario Continues The employer has a rule that prohibits employees who are the subject of an investigation from discussing the incident with anyone before the investigation is complete. Is the employer’s prohibition a legitimate one?

To justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees' Section 7 rights. We find that the Respondent's generalized concern with protecting the integrity of its investigations is insufficient to outweigh employees' Section 7 rights. Rather, in order to minimize the impact on Section 7 rights, it was the Respondent's burden “to first determine whether in any given investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover up.” The Respondent's blanket approach clearly failed to meet those requirements. Accordingly, we find that the Respondent, by maintaining and applying a rule prohibiting employees from discussing ongoing investigations of employee misconduct, violated Section 8(a)(1) of the Act. Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (2012), amended, 362 NLRB No. 137 (2015). Thyfault v. Pendleton School District No. 16, 13 PECBR380 (1991), affirmed without opinion, 116 Or. App. 675 (1992), rev. denied, 316 Or. 529 (1983).

The Factual Scenario Continues The employer meets with the accused employee and gives him a Garrity warning and orders him to answer questions. The employee signs the Garrity warning. The employee asserts his Fifth Amendment right and refuses to answer questions.

Enter Garrity v. New Jersey, 385 US 493 (1967) The Facts. Police officers were questioned during the course of a state investigation concerning alleged traffic ticket "fixing." All were warned that anything they said might be used against them in a state criminal proceeding, that they could refuse to answer if the disclosure would tend to incriminate them, and that if they refused to answer, they could be fired.

Garrity v. New Jersey The Facts and The Issue The officers' answers to the questions were used over their objections in subsequent prosecutions, which resulted in their convictions. The issue for the Supreme Court – Does the Fifth Amendment’s bar on compulsory self-incrimination provide any protections in an administrative investigation?

The Rationale Behind the Garrity Rule “The choice imposed on [the officers] was one between self-incrimination or job forfeiture,” a choice which is “coercion” and which amounts to “compelled” testimony entitled to Fifth Amendment protections. “Policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.” “. . . the fear of being discharged under it [the rule] for refusal to answer, on the one hand, and the fear of self-incrimination, on the other, was ‘a choice between the rock and the whirlpool,’ which made the statements products of coercion in violation of the Fourteenth Amendment.”

The Garrity Rule If an employee is compelled by threat of possible job forfeiture to make an oral or written statement . . . Then Neither the statement nor the fruits of the statement may be used against the employee in a subsequent criminal prosecution of the employee.

The Garrity Rule Gardner v. Broderick, 392 US 273 (1968) "If appellant, a policeman, had refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself, Garrity v. New Jersey, supra, the privilege against self-incrimination would not have been a bar to his dismissal.”

The Importance of the Order in Garrity It is the order to give a statement which amounts to the compulsion which triggers Fifth Amendment protections and, thus, immunity. The order also serves as the requisite warning to the employee that charges of insubordination may follow if the employee does not provide the required statement.

What Amounts to a Garrity Order? Case involved six Miami officers who were involved in a struggle which led to the death of a suspect. An employee is considered "ordered" to answer questions if (1) the employee subjectively believed that he was compelled to give a statement upon threat of loss of job, and (2) the employee's belief was objectively reasonable at the time the statement was made. United States v. Camacho, 739 F. Supp. 1504 (S.D. Fla. 1990).

When is an Employee’s Belief Reasonable? Factors that bear on the objective reasonableness of an employee’s belief: Who conducted the interview? Where was the interview conducted? What are the employer’s rules? Was the employee told he/she was free to leave? Did the interviewer say anything about the consequences of failing to answer? Was the interview recorded?

“. . . a necessary prerequisite to concluding that a subjective belief is objectively reasonable is that the belief be derived from actions taken by the state. A subjective belief that Garrity applies will not be considered objectively reasonable if the state has played no role in creating the impression that the refusal to give a statement will be met with termination of employment.” Comacho, 739 F Supp. at 1515 (citations omitted).

The Factual Scenario Continues The employer is considering disciplinary action against the employee for insubordination. The employee asks the employer to hold the investigation in abeyance until the criminal process is concluded. The employer refused. The employee also claimed that he asserted his Fifth Amendment right and did not answer questions on the advice of counsel.

The Factual Scenario Continues The union representative claims the employee did not answer the question because the prosecutor did not provide a written statement protecting the employee. So, the employee refuses to answer the employer’s questions.

Questions: For Garrity purposes, was the employee considered “compelled” to answer the questions asked by the employer? Does the employer have to put the investigation on hold? Can the employer discipline or discharge the employee? For Garrity purposes, is a formal grant of immunity required before a public employee can be forced to answer questions asked in a disciplinary investigation?

The Factual Scenario Continues There were other employees at the training. An employee witness decides to participate in the interview. The employee walks into the Human Resources Manager’s office and there are two other supervisors present. The Manager tells the employee to sit down while he remains standing. The employee tells the Human Resources Manager, “I want my union representative present.” The Manager says, “No, you’re just a witness and only the subject of the investigation is entitled to union representation. You’re ordered to answer our questions, and to do so now.”

Questions: What should the employee witness do after receiving the order to answer the questions? Did the employee witness have the right to representation by a union representative?

Enter the Weingarten Rule “A single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors. A knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview.” National Labor Relations Board v. J. Weingarten, 420 U.S. 251, 262-63 (1975).

The Elements of the Weingarten Rule If the employer . . . Requires that the employee submit to questioning . . . Which the employee reasonably believes could result in disciplinary action . . . Then the employee’s labor organization . . . Has the right to represent the employee if the employee so requests . . . Unless the exercise of the right to representation unduly interferes with the employer’s operations.

Unpacking Weingarten If the employer . . . Weingarten rights do not apply if the employee is answering other than the employer’s questions. But what if the employer uses its authority to require employees to answer the questions of another, for example, a prosecutor or detective?

Unpacking Weingarten – What is “Questioning”? Requires that the employee submit to questioning . . . Weingarten only applies if the employer is questioning the employee. Examples where Weingarten does not apply – giving a performance evaluation, delivering discipline. What if the employer orders the employee to write a report in lieu of questioning?

Unpacking Weingarten – What is a Reasonable Belief? One which the employee reasonably believes could result in disciplinary action . . . . What if the employer announces the employee is only a witness and will not be disciplined? What if the employer’s conduct is inconsistent with the employee being a witness? What if the employer reads the employee Garrity warnings? What if the employee is read Miranda prior to the interview?

Unpacking Weingarten Which the employee reasonably believes could result in disciplinary action . . . What if the employee is taking a drug test? Safeway Stores, 303 NLRB 989 (1981) (employee was entitled to union representation during a meeting where the employer wanted the employee to be drug tested as part of an inquiry into his absenteeism).

Unpacking Weingarten Which the employee reasonably believes could result in disciplinary action . . . What if the employee is in the ADA reasonable accommodation process? SEIU Local 1021 v. Sonoma County Superior Court, CA PERB Dec. No. 2409-C (2015) (under California law, public employee has right to union representation at an ADA interactive process and reasonable accommodation meeting, overruling earlier case).

Unpacking Weingarten —Reasonableness Take into account the “totality of the circumstances” Factors: Whether the interview concerns a subject that may result in discipline; Evidence of wrongdoing; Whether the employer representative conducting the interview has the authority to impose discipline; Whether the employee attending the meeting knows about discipline imposed on others for similar conduct; Whether the circumstances suggest a possibility of discipline, e.g., a more formal style of meeting is more likely to suggest the possibility of discipline.

Unpacking Weingarten —Reasonableness Take into account the “totality of the circumstances” “It is the possibility, rather than the inevitability, of future discipline that determines the employee’s right to union representation.” ILWU, Local 28 v. Port of Portland, ERB Case No. UP-35-10, pp. 9, 10 (2012)

Unpacking Weingarten — Then the employee’s labor organization . . . Who chooses the representative – the employer or the union? Must the employer provide the employee with information that may influence which representative is chosen?

Unpacking Weingarten — Then the employee’s labor organization . . . Is the employee/labor organization entitled to notice of the charges against the employee? Is the employee/labor organization entitled to a copy of any complaint? Pacific Telephone & Telegraph Co., 262 NLRB 1048, 1049, aff’d, 711 F2d 134 (9th Cir. 1983) (union is entitled to “[a] general statement as to the subject matter of the interview, which identified the employee and his representative the misconduct for which discipline may be imposed”). ORS 236.360(2)(e) (no interview until officer informed of “nature of the investigation and of facts reasonably sufficient to inform the officer of the circumstances surrounding the allegations under investigation”

Unpacking Weingarten — An Employee Request is Required Has the right to represent the employee if the employee so requests . . . Unlike Garrity, Weingarten is not self- executing. Employees must request the right to representation.

Unpacking Weingarten Unless the exercise of the right to representation unduly interferes with the employer’s operations. An employer “controls the manner, form, and timing of its investigatory and discipline process and can take steps to protect its legitimate interests.” (Pacific Telephone & Telegraph Co., 262 NLRB 1048 (1982), enf’d, 711 F2d 134 (9th Cir. 1983).) The sorts of questions a labor board will ask in judging whether the right to representation will unduly interfere with an employer’s operations.

The Factual Scenario Continues A union representative arrives, and the Human Resources Manager prepares to start the interview. The union representative says, “We’re not going to start this interview until you tell me who the subject of the investigation is, and what the charges are.” The Human Resources Manager says, “we’re starting the interview now.” The employee witness says, “not until you tell me what the charges are.”

Possible Roles of the Union Representative Level 1: Fly on the wall. Level 2: Ascertain the charges against the employee before the interview starts. Level 3: Offer mitigating circumstances and investigatory leads. Level 4: Question the employee at the conclusion of the interview. Level 5: Consult with the employee during the interview. Level 6: Object to inappropriate questions.

Question: If the employee witness refuses to participate in the interview and is fired for insubordination, what will be the likely result of an unfair labor practice complaint alleging violation of the Weingarten rule?

The Factual Scenario Continues The employee who is the subject of the investigation is invited to make a voluntary statement in a mitigation or pre-disciplinary hearing, but is not compelled to do so.

Question: If the employee who was invited to make the voluntary statement declines to participate in the mitigation hearing, does the Fifth Amendment prohibit the employer from terminating the employee based on the other information it has collected in its investigation?

The Factual Scenario Continues The criminal prosecution of the suspect employee starts with grand jury proceedings. In preparing for the grand jury, the prosecutor requests, obtains, and reads the employer’s investigation file. The file contains transcripts of the interviews of the employee witness and the suspect employee.

Question: For Garrity purposes, is the review of the file by a prosecutor impermissible “use” of the officers’ compelled statements?

The Three Degrees of Immunity Use Immunity: The compelled statement may not be used in a subsequent criminal prosecution. Derivative Use Immunity: The fruits of a compelled statement may not be used in a subsequent criminal prosecution. Transactional Immunity: An individual who is compelled to give a statement may not be prosecuted about the subject of the compelled testimony.

One View of What the Word “Use” Means United States v. Oliver L. North, 910 F2d 843, 860-63, 872-73, modified, 920 F2d 940 (DC Cir. 1990), cert. denied, 500 US 941 (1991): The District Court must hold a full hearing that will inquire into the content as well as the sources of the grand jury and trial witnesses' testimony. That inquiry must proceed witness-by-witness, and if necessary, line-by-line and item-by-item. “For each grand jury and trial witness, the prosecution must show by a preponderance of the evidence that no use whatsoever was made of any of the immunized testimony either by the witness or by the [prosecutor] in questioning the witness.”

A Second View of What the Word “Use” Means United States v. Stacy C. Koon, 34 F3d 1416 (9th Cir. 1994): All the prosecution need prove is that the substance of the testimony of any witness exposed to a compelled statement is based on a legitimate source independent of the immunized testimony because internal investigators “do not necessarily act with the care and precision of a prosecutor weighing the benefits of compelling testimony against the risks to future prosecutions; indeed, they may not even have the prospect of prosecution and the requirements of the Fifth Amendment in mind.”

A Third View of What the Word “Use” Means State v. Jackson, 125 Ohio St. 3d 218 (2010), (Ohio Supreme Court): “We share the concern . . . that the prosecutor, who admitted having reviewed Jackson's Garrity statement, was afforded an impermissible advantage in trial preparation. A defendant's version of events provides the prosecutor with invaluable information, including the names of witnesses, potential defenses, and other information that could influence trial strategy. . . . The state makes derivative use of a Garrity statement when the prosecutor reviews the statement in preparation for trial.”

The Factual Scenario Continues The employee’s labor organization decides to conduct a concurrent investigation with that of the employer. The union’s president interviews all of the involved members as well as others with prior knowledge of the suspect. The employer learns of the union’s parallel investigation and orders the union president to stop the investigation until its investigation is complete.

Question: Was the order that the union not conduct a concurrent investigation a legal one?

Questions?