Commonwealth, Office of Administration v. Pennsylvania Labor Relations Board

916 A.2d 541, 591 Pa. 176, 2007 Pa. LEXIS 355, 181 L.R.R.M. (BNA) 2469
CourtSupreme Court of Pennsylvania
DecidedFebruary 20, 2007
StatusPublished
Cited by46 cases

This text of 916 A.2d 541 (Commonwealth, Office of Administration v. Pennsylvania Labor Relations Board) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth, Office of Administration v. Pennsylvania Labor Relations Board, 916 A.2d 541, 591 Pa. 176, 2007 Pa. LEXIS 355, 181 L.R.R.M. (BNA) 2469 (Pa. 2007).

Opinion

OPINION

Chief Justice CAPPY.

This appeal by allowance concerns the contours of an employee’s Weingarten right1 under the Pennsylvania Public Employe Relations Act (PERA),2 that is, the right to be accompanied by a union representative during an interview in which the employee reasonably fears that discipline may be imposed by the employer. Specifically, we are asked to consider whether a public employee has the right to be accompanied by a union representative of his or her choosing during such an investigatory interview. For the reasons that follow, we conclude that the right of accompaniment during an investigatory interview includes the employee’s choice of union representative — when the union representative is reasonably available and there are no extenuating circumstances. Thus, for the reasons stated herein, we reverse the order of the Commonwealth Court.

The facts of this appeal are as follows. Donald Vogel worked for the Commonwealth of Pennsylvania (the Commonwealth) as a State Correctional Officer. On November 13, 2001, Officer Vogel was instructed to report to his immediate supervisor, Captain Soroko3 for counseling. Before he entered Captain Soroko’s office, Officer Vogel met with Officer Paul Len-nert concerning the reason for his meeting with Captain Soroko. Officer Lennert was a member of the Pennsylvania State Corrections Officers Association’s (the Association) local executive board. When he entered Captain Soroko’s office, Officer Vogel requested to be represented by Officer Craig Panko instead of Officer Len-nert. Officer Vogel knew that Officer Panko had been counseled for missing roll calls and that Captain Soroko referred to Officer Vogel’s roll call record while counseling Officer Panko. Furthermore, at the time of the counseling session, Officer Panko was a union steward; Officer Len-nert did not hold such a position.

Captain Soroko denied Officer Vogel’s request. Officer Lennert offered to relieve Officer Panko so that he could attend the counseling session. Captain Soroko rejected Officer Lennert’s offer and insisted that Officer Lennert stay to represent Officer Vogel during the session.

During the counseling session, Captain Soroko accused Officer Vogel of being late for roll call fifteen times and Officer Vogel responded that there was no truth to these allegations. At the end of the meeting, Captain Soroko indicated that he possessed the records to prove that Officer Vogel had been late for roll call and informed Officer Vogel that he would “get [544]*544[Captain Soroko’s] decision later.” Ultimately, Officer Vogel was not disciplined as a result of the alleged missed roll calls.

Thereafter, the Association filed a charge of unfair labor practices with the Pennsylvania Labor Relations Board (the Board or PLRB). The Association alleged that by refusing to permit Officer Vogel to have Officer Panko represent him during the counseling session, the Commonwealth violated Section 1201(a)(1) and (5) of PERA.4

The Board issued a complaint and a hearing was held on May 17, 2002 before a hearing examiner. On June 26, 2002, the hearing examiner issued a Proposed Decision and Order dismissing the charge of unfair labor practices. The hearing examiner determined that the Union had failed to establish that Officer Panko was readily available and did not show that Officer Vogel was entitled to Officer Panko’s representation. Thus, the hearing examiner dismissed the charges filed pursuant to Section 1201(a)(1). The hearing examiner also dismissed the Association’s claim under Section 1201(a)(5) finding that the Association’s collective bargaining rights were not violated. The Association filed exceptions to the hearing examiner’s decision and order.

On January 28, 2008, the Board rendered a Final Order in which the Board rejected the findings of the hearing examiner and concluded that the Commonwealth had committed an unfair labor practice by failing to provide Officer Vogel with his choice of union representative. Specifically, the Board first looked to Captain Soroko’s accusation of past misconduct which could lead to the imposition of discipline coupled with his lack of decision regarding whether to impose discipline. This led the Board to conclude that Officer Vogel was subjected to an investigatory interview which implicated Officer Vogel’s Weingarten rights. The Board then questioned whether an employee, in exercising his Weingarten rights, has the right to choose from available representatives in the work place. The Board concluded that an employee is entitled to an available representative of his or her choosing, absent extenuating circumstances. Based upon Officer Lennert’s offer to permit Officer Panko to attend the interview, the Board opined that Officer Panko was present and available to attend the counseling session with Captain Soroko and Officer Vogel. Therefore, the Board determined that the Commonwealth had violated Section 1201(a)(1) of PERA. The Board, however, rejected the Association’s contention that the Commonwealth had violated its bargaining rights pursuant to Section 1201(a)(5), concluding that a Weingarten right was a right of the employee and not the Association. The Board ordered the Commonwealth to cease and desist from interfering with the employees’ rights under PERA and to post a copy of the Board’s Final Order. The Commonwealth appealed the Board’s Final Order to the Commonwealth Court.

The Commonwealth Court agreed with the Board that Officer Vogel’s counseling session constituted an investigatory inter[545]*545view implicating Officer Vogel’s Weingar-ten rights. This conclusion was based upon the court’s determination that not only did Captain Soroko note the potential disciplinary action to be taken as a result of the session, but also he explained that he was deferring a decision regarding discipline until a later time.

The Commonwealth Court, however, rejected the Board’s conclusion that during an investigatory interview, an employee may have his or her choice of representative absent extenuating circumstances. The court found that decisions arising from the National Labor Relations Act (NLRA),5 such as Weingarten, were not necessarily applicable to issues under PERA. Specifically, the court reasoned that decisions under PERA impact not only public employers and public unions, but also the public; this is unlike decisions rendered under the NLRA which impact only private employers and private unions. Taking a circumscribed view of the nature of rights under PERA, the court went on to instruct that, “Nothing in PERA gives the Board the power to vest in any particular employee any particular collective bargaining rights because PERA is a collective bargaining statute vesting all rights in a union, and only it and no individual employee has any individual collective bargaining right vis-a-vis the employer.” Office of Administration v. PLRB, 848 A.2d 1063, 1068 (Pa.Cmwlth.2004).

While acknowledging that the Board premised its decision on a section in PERA that was similar to the section in the NLRA on which the decision in Weingar-ten was based, the Commonwealth Court nevertheless opined that “those sections and those rights have nothing to do with the rights of individual employees, but only the rights of the union.” Id.

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Bluebook (online)
916 A.2d 541, 591 Pa. 176, 2007 Pa. LEXIS 355, 181 L.R.R.M. (BNA) 2469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-office-of-administration-v-pennsylvania-labor-relations-pa-2007.