No Right To Union Representation In Criminal Investigation Conducted By Another Law Enforcement Agency

Sergeant Stephen Gillen and Officers Charles Staub and Benjamin Townsend are active in the Upper Gwynedd Township, Pennsylvania Police Association. While on duty April 19, 2001, Gillen and Staub became aware that Officer Frank Tiziana was being interviewed by two Montgomery County detectives in an office within the Township’s police station. The detectives were interviewing Tiziana as part of their investigation of criminal allegations against him.

In an attempt to ascertain the nature of the meeting and whether they should be providing union representation, Gillen and Staub approached the Chief in his office. Gillen twice asked the Chief whether Tiziana could be disciplined or criminally charged as a result of the meeting and the Chief twice replied that the County was talking to the officer and that he was staying out of it.

After an unsuccessful attempt to reach legal counsel, Gillen and Staub met with Townsend and the three decided to knock on the door of the office in which Tiziana was being interviewed. One of the detectives opened the door, but did not speak. Gillen indicated that he wished to speak with Tiziana, who left the office and met with the three Association representatives in the lobby of the police station. Townsend asked Tiziana whether he could be disciplined or criminally charged as a result of his discussion with the County detectives and Tiziana responded affirmatively. Tiziana then met with Gillen alone in the parking lot, where he indicated that he was under criminal investigation.

A detective then went to the parking lot, where Gillen raised the issue of whether Tiziana was entitled to union representation. The detective responded that it was not an internal investigation and that he would not continue the interview if Gillen was present. Tiziana returned to the interview room and the interview continued with only the County detectives and Tiziana present. Gillen returned to the interview room, handed Tiziana a piece of paper and left. After receiving a telephone call from an attorney, Tiziana refused to submit to further questions by the County detectives and the interview was terminated.

After the interview, the Chief placed Tiziana on administrative leave with pay. The County thereafter decided not to file criminal charges against Tiziana, but the District Attorney wrote to the Chief and asserted that the Township’s police officers had interfered with their investigation. The Chief then issued suspensions to the three ranging from 36 to 240 hours and relieved them of their tactical team assignments or officer-in-charge responsibilities.

The Association filed an unfair labor practice complaint with the Pennsylvania Labor Relations Board, alleging that the three officers were disciplined for engaging in protected union activity. The Board rejected the Association’s complaint.

The Board found that the Association’s representation rights only existed when an employee sought “union representation at an investigatory interview with his or her employer, which the employee reasonably believes may result in the imposition of discipline.” The Board concluded that none of these conditions existed with Tiziana’s interview.

First, the Board held that “Tiziana did not seek union representation. Instead, Gillen, Staub and Townsend sought out Tiziana. There is no support for the Association’s theory that Association representatives could exercise Weingarten rights on Tiziana’s behalf.”

The Board next found that “the interview was not conducted by Tiziana’s employer. The Association offered no evidence that the Township designated the County to conduct an internal investigation of Tiziana on its behalf. There is no evidence that the County was working as an investigative arm of the Township when it interviewed Tiziana.”

Lastly, the Board concluded that there was no evidence that the interview was conducted for disciplinary purposes. To the contrary, the Board held that “the interview was conducted in order for the County to investigate criminal allegations that were made against Tiziana, not to form the basis for disciplinary actions by his employer.”

Since the Board ruled that the three Association representatives were not engaged in protected activity during Tiziana’s interview, it held that the Township’s decision to discipline the representatives did not constitute illegal retaliation for the exercise of union activity.

Upper Gwynedd Township Police Association, 33 PPER ¶33133 (Pa. LRB 2002).