STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
BELLEVUE POLICE OFFICERS GUILD,
Complainant,	CASE 9292-U-91-2064
vs.	DECISION 4324 - PECB
CITY OF BELLEVUE,	FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
Respondent.

Richard D. Eadie, Attorney at Law, appeared on behalf of the complainant.

Richard L. Andrews, City Attorney, by David E. Kahn, Assistant City Attorney, appeared on behalf of the respondent.

On July 29, 1991, the Bellevue Police Officers Guild (union) filed a complaint charging unfair labor practices with the Public Employment Relations Commission, alleging that the City of Bellevue (employer) had committed unfair labor practices within the meaning of RCW 41.56.140(1) and (2), by refusing to allow the union to actively participate in a disciplinary meeting conducted pursuant to a police department internal investigation. A hearing was conducted on June 22 and July 6, 1992, in Bellevue, Washington, before Examiner Kenneth J. Latsch. The Examiner denied a motion for summary judgment made by the employer at the outset of the hearing. The parties filed post-hearing briefs.

BACKGROUND

The City of Bellevue has collective bargaining relationships with a number of employee organizations, including the Bellevue Police Officers Guild. The union represents a bargaining unit of law enforcement personnel below the rank of captain.

Events leading to the instant unfair labor practice complaint can be traced to an internal police department investigation into whether discipline should be imposed on Stephen Cercone, a member of the bargaining unit represented by the union. At all times pertinent to this decision, Lieutenant William Ferguson served as the department's internal investigation officer.

On July 10, 1991, Lieutenant Ferguson received a memorandum from Acting Police Chief Garnett Arcand, directing Ferguson to initiate an internal investigation into a July 4, 1991 incident when Cercone allegedly refused to follow the orders of a superior officer.[1]

On July 11, 1991, Arcand sent a memorandum to Cercone, stating that an internal investigation had been initiated on the matter. Arcand informed Cercone that Ferguson was conducting the investigation, and that Ferguson would contact him at some point in the investigatory process.

Ferguson conducted an initial review of the situation with officers familiar with the incident. Ferguson set an investigatory interview with Cercone, to take place on July 23, 1991 in Ferguson's office.

The July 23, 1991 interview was attended by Ferguson, Cercone, and Chris Vick, an attorney for the Bellevue Police Officers Guild. Ferguson used a tape recorder to record the interview. The record reflects that Cercone and Vick knew of the recording, and did not object. At the beginning of the interview, Ferguson handed Cercone a document titled "Internal Affairs Advisement Form", which specified that the interview was being conducted pursuant to Bellevue Police Department procedures, and was intended to determine: the facts and possible violations of Department Policy/Procedure, Rules and Regulations involved in the incident on July 4, 1991, regarding the incident involving Officer Stephen Cercone and Lt. Mike Griffin.

The advisement form stated consequences for failing to participate in the investigation and contained the following statement regarding Cercone's right to representation during the interview:

Failure to fully cooperate by truthfully answering all questions specifically and directly related to the matter under investigation and/or by providing investigators with all potentially relevant information, will result in disciplinary action which may include discharge from the Department.

There is no right to have counsel present during the interview, even though the person being interviewed may be the subject of disciplinary action upon the conclusion of the investigation.

Only the employee who is the subject of an internal investigation may request and obtain the presence of a guild/union representative during the investigatory interview, provided that the guild/union representative shall not disclose the nature or content of the interview to any person, shall not participate in the interview except as an observer, and shall not be the spouse of the subject employee or a witness in the matter under investigation. Failure to obtain a guild/union representative is not an acceptable basis for unreasonably delaying an investigative interview.

[Emphasis by bold supplied.]

Vick asked for a copy of the advisement form, but Ferguson refused to provide one to him. Vick also stated that he wanted to participate in the interview, but Ferguson denied that request. Ferguson informed Vick that he could attend the interview, but could not take any active role in it. Vick responded that Ferguson's refusal could lead to unfair labor practice charges.

After his brief discussion with Vick, Ferguson left the interview room and attempted to contact David Kahn of the city attorney's office, to discuss the situation. Kahn was unavailable, so Ferguson spoke with Ruth Darden, the police department's legal advisor. Ferguson explained the situation, and Vick's request to participate in the interview. Darden told Ferguson to continue with the interview without Vick's participation.

Ferguson returned to the interview room, and informed Vick that he could not take an active part in the proceedings. Ferguson went on to inform Vick that the employer was contemplating changes in the "internal investigation advisement form" that would allow union participation in such interviews, but that the existing policy would continue until such time as the new form was adopted.

Ferguson then proceeded to interview Cercone, who answered Ferguson's questions without comment or assistance from Vick. At the end of the interview, Ferguson asked Cercone and Vick if they wanted to add anything for the record. Both declined the offer.

After the interview was concluded, Ferguson listened to the tape recording, but found that it was mostly unusable. Ferguson determined that a second interview was necessary to "recreate" the original interview. Ferguson informed Cercone that the interview would have to be conducted again, and also stated that a union representative could be present.

The second interview took place several days after the first interview. A union steward attended the interview with Cercone. Ferguson explained why the second interview was necessary, and typed out Cercone's answers to the same questions that had been put to him during the original interview. The second interview lasted for approximately three hours. During the course of the second interview, Ferguson allowed Cercone the opportunity to provide additional information. At the conclusion of the second interview, Cercone reviewed Ferguson's typed report and made minor editing changes in that report. The record indicates that the union steward acted only as an observer in the second interview, and that the union steward did not review the final report.

On July 29, 1991, the union filed the instant unfair labor practice complaint. The union alleged that the employer's refusal to allow Vick to participate in the first interview was unlawful.

On August 29, 1991, a consultant working for the union, Michael Zimmerman, sent a letter to Chief of Police Joseph Smith.[2] That letter followed a telephone call Zimmerman had made to Smith, and reiterated a request that the employer provide Cercone's complete internal investigation file in preparation for an anticipated due process hearing. On the same date, Smith sent Zimmerman a letter denying the request for the internal investigation file.

On August 30, 1991, Chief Smith conducted a hearing in his office, concerning the discipline of Cercone. Smith and Arcand attended on behalf of the employer. Zimmerman and a union steward attended the meeting with Cercone. Smith testified that a final determination of discipline had not yet been made when the hearing began. At the outset of the hearing, however, Smith expressed his intention to suspend Cercone, but wanted Cercone to bring forth any mitigating circumstances. The hearing lasted approximately 30 minutes. The record indicates that Zimmerman and the steward did not actively participate in the hearing.

On August 30, 1991, Smith sent Cercone a memorandum titled "Notice of Disciplinary Action". Smith stated that Cercone was to be suspended for 40 hours without pay, as a result of the incident under investigation. The memorandum further directed Cercone to provide any mitigating information in a timely manner before the suspension was served.

At an unspecified time, Cercone applied for a transfer to the a detective position in the narcotics unit. During a conversation in Arcand's office in September of 1991, Arcand informed Cercone that his transfer to the narcotics position was being denied because of the earlier internal affairs investigation, and because Cercone could not follow orders. Arcand told Cercone that he would have to re-apply at a later date to be considered for the position.[3]

At some unspecified time after its second interview of Cercone, the employer modified the advisement form. The new form contained the following language:

E)     The employee who is the subject of an internal investigation may request and obtain the presence of a Guild/Union representative during the investigatory interview provided that:

1)      The Guild/Union representative shall not disclose the nature or content of the interview to any person, except as necessary to the Guild Executive Board or Guild Legal Advisor.

2)      In addition to observing the interview, the Guild/Union representative may ask additional questions and seek to clarify responses at the conclusion of the investigative interview. The Union/Guild representative may invoke statutory privilege on behalf of the employee, and may reasonably consult with the employee to determine whether statutory privilege applies. The Guild/ Union representative may not otherwise interfere with the investigative interview.

3)      The Guild/Union representative may not be the spouse of the subject employee or a witness in the matter under investigation.

Failure to obtain a guild/union representative is not an acceptable basis for unreasonably delaying an investigative interview.

[Emphasis by bold supplied.]

Ferguson telephoned Vick to notify him that Cercone would be ordered to attend a meeting where the new form would be presented. Ferguson invited Vick to attend, but told Vick that the only question to be put to Cercone would be whether he had anything else to add for consideration. Vick declined to attend such a meeting.

On March 24, 1992, Cercone met with Ferguson to review and sign the new advisement form. Ferguson explained the purpose of the meeting, and asked if Cercone had anything else to add. Cercone did not, and he signed the new form.

Cercone had not served the suspension prior to the hearing in the instant unfair labor practice case.

THE MOTION FOR SUMMARY JUDGMENT

At the outset of the hearing, the employer argued that the Commission does not have jurisdiction to hear the instant dispute. Citing Kitsap County Fire District 7. Decision 3610 (PECB, 1990), the employer contended that the Commission has already ruled that it does not have jurisdiction to adjudicate disputes arising from interpretation of disciplinary proceedings such as those described in Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985).

The union opposed the motion for summary judgment, contending that the underlying issue concerns the employer's refusal to provide bargaining information needed for the filing or processing of a grievance.

The Examiner denied the motion for summary judgment at the hearing, and confirms that ruling here. Kitsap County Fire District 7 does not control the instant proceeding, which concerns the applicability of the right of employees to union representation at investigatory interviews under NLRB v. Weinaarten Inc., 420 U.S. 251 (1975) ; City of Seattle, Decision 3593-A (PECB, 1991); and King County, Decision 4299 (PECB, February 16, 1993).

POSITIONS OF THE PARTIES

The union argues that the employer violated Officer Cercone's collective bargaining rights, by refusing to allow Cercone's union representatives to participate in the investigatory interviews. The union contends that it was not sufficient for the employer to allow a union representative to attend as a silent observer at those investigatory interviews, without the right to participate on Cercone's behalf. The union further contends that the employer committed an unfair labor practice by refusing to provide information to be used by the union in disciplinary investigations. The union maintains that the employer's later attempts to correct the situation do not excuse the statutory violations. As a remedy, the union asks that all discipline of Cercone be voided, that Cercone be transferred to the narcotics detective position, that the employer be required to post appropriate notices, and that the employer pay attorneys' fees.

The employer denies that it committed an unfair labor practice, and contends that Cercone's Weinqarten rights were protected in the internal investigation process used by the police department. The employer maintains that, even if the first "advisement form" was improper, Cercone and his union representative were allowed all Weinqarten rights at the first meeting. The employer further contends that it took steps to correct the problem with the advisement form, and offered Cercone numerous opportunities to supply additional information about the underlying incident. In the event that a Weinqarten violation is found, the employer contends that the appropriate remedy is limited to an order that it cease and desist from the improper activity, and to remand the matter for further internal investigation without use of the evidence gathered at the tainted interview. The employer asserts that the Commission has consistently refused to assert jurisdiction over cases involving interpretation of state or federal constitutional issues, and renews its contention that the union's focus on preparation for a due process hearing places the instant matter beyond the Commission's jurisdiction. The employer argues that internal investigation files are kept as confidential, and that the non-disclosure of the investigation files did not constitute an unfair labor practice.

DISCUSSION

The Right to Union Representation

In NLRB v. Weinqarten Inc., 420 U.S. 251 (1975), the Supreme Court of the United States ruled that a bargaining unit employee under the National Labor Relations Act has the right to be represented by a union official during an investigatory interview where the employee reasonably believes that discipline could result. The principles set forth in Weinqarten have been applied under the Public Employees' Collective Bargaining Act, Chapter 41.56 RCW, since at least City of Montesano, Decision 1101 (PECB, 1981). In Okanogan County. Decision 2252-A (PECB, 1986), the full Commission held that the Weinqarten precedent was consistent with the public policy behind Chapter 41.56 RCW, stating that conclusion in the following terms:

We find that, although Chapter 41.56 RCW does not have language identical to section 7 of the NLRA, rights comparable (insofar as relevant to this issue) to those emanating from section 7 may be inferred from RCW 41.56.040, which states:

No public employer, or other person, shall directly or indirectly interfere with, restrain, coerce, or discriminate against any public employee or group of public employees in the free exercise of their right to organize and designate representatives of their own choosing for the purpose of collective bargaining, or in the free exercise of any other right under this chapter.

Given the salutary purpose of the rule, we further find its adoption (and its enforcement under the "interference" unfair labor practice, RCW 41.56.140 (1)) to be consistent with the plain purpose of Chapter 41.56 RCW, as set forth in RCW 41.56.010.

In City of Seattle. Decision 3593-A (PECB, 1991), the Commission found that the employer violated the collective bargaining statute by refusing to extend Weinqarten protections to an employee.[4] The Commission stated:

In NLRB v. Weinqarten, 420 U.S. 251 (1975), the Supreme Court agreed with the National Labor Relations Board that an employee was entitled to union representation at an "investigatory" interview where the employee reasonably believes that the session might result in disciplinary action against him. The same principles have been adopted under Chapter 41.56 RCW. Okanogan County, Decision 2252-A (PECB, 1986); City of Seattle, Decision 2773 (PECB, 1987).

Clearly then, the Commission focuses on the potential for imposition or modification of discipline as the primary factor in determining whether the Weingarten right attaches in an investigatory meeting.[5]

In the instant case, the crucial moment for analysis is the first interview conducted by Ferguson on July 23, 1991. It is clear that the employer had not determined the severity of discipline at that time.[6] The Weingarten protections were aimed directly at this type of situation. Officer Cercone was ordered to attend a meeting where the employer would gather information to be used in determining the level of discipline to be imposed. The second interview amounted to a reiteration of the first interview, while the third interview conducted after the new "advisement form" was adopted did not even purport to be a complete reiteration of the exercise. It is the conclusion of the Examiner that the Weingarten right to union representation applied to Cercone in this case.

The actions of employer officials in delaying the first investigatory interview to discuss the applicability of Weingarten principles, in conducting the first investigatory interview under preface of a statement that revision of the "advisement" form was being considered, in actually revising the "advisement" form, and then in holding the third interview of Cercone, all indicate that the employer was generally aware of the right of its employees to union representation in an interview of this nature.

Union Participation at Investigatory Interviews

The narrow issue presented in the instant case is whether an employer may impose limitations on the role and participation of the union official at a Weingarten meeting. That precise issue was the subject of the decision issued by an Examiner in King County. Decision 4299 (PECB, February 16, 1993). While that precedent was not available to provide guidance to the City of Bellevue in the instant case, the undersigned Examiner concurs with the analysis and result reached by the Examiner in the King County case.

In the instant case, a union attorney was present at the first investigatory interview, but was not allowed to participate. The attorney was effectively prevented from representing Officer Cercone. The King County matter also arose in the context of a police force and involved the discipline of a law enforcement officer. The employee in King County asserted his Weingarten right to representation, and was accompanied to the investigatory interview by a union official. The employer in King County restricted the role of the union official to that of a passive observer at the investigatory interview. The Examiner in King County found that the employer committed an unfair labor practice, and the same result must be reached here. The mere presence of the union's attorney does not mitigate against the employer's violation of Weingarten standards. Instead of having a union representative, Officer Cercone had, at best, a union observer who could not provide real assistance while the investigation unfolded.

The Request for Information

It is well-established that the statutory duty to bargain includes a duty to provide, upon request, information needed by the opposite party to the bargaining relationship for the performance of its functions in the collective bargaining process. City of Bellevue, Decision 3156-A (PECB, 1989), affirmed, ___Wn.2d ___ (1992). That duty to provide information includes materials needed for grievance processing.

In the instant case, the employer flatly refused to provide any information contained in the internal investigation file, based on a claim of confidentiality. At the same time, and in conflict with its claim of confidentiality, the employer found it appropriate to allow participation by the union's attorney and a union official in disciplinary interviews. The employer should have made a good faith effort to provide the requested information. The employer's complete refusal is demonstration of its recalcitrance, and is an unfair labor practice.

The employer's arguments concerning the applicability of Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) , are not persuasive. The Loudermill hearing procedure is a "due process" requirement imposed by the Supreme Court of the United States under the United States Constitution, rather than a component of the collective bargaining relationship. This is not a case where the employee's only statutory protections arise from Loudermill. In this case, Officer Cercone's right to representation arises from a collective bargaining statute and precedent interpreting that statute. This decision is based on the rights secured separately for employees in a collective bargaining context by another decision of the Supreme Court of the United States: Weingarten. The scope of collective bargaining includes concerns about an employee's tenure of employment, and the union had a right to represent Cercone in all matters related to his discipline. Thus, the employer improperly withheld information needed by the union for the processing of grievances.[7]

REMEDY

As a remedy for the unfair labor practices, the employer shall be ordered to allow union representation in investigative meetings. The employer shall also be ordered to provide pertinent information concerning investigative matters to the Bellevue Police Officers Guild.

The employer has not established that its discipline of Officer Cercone was unaffected by the information obtained at the unlawfully conducted investigatory interviews. Thus, all discipline against Officer Cercone shall be withdrawn, and Officer Cercone shall also be deemed eligible for transfer to the narcotics detective position when the next vacancy becomes available, without imposition of any application or requalification procedures.

FINDINGS OF FACT

1.         The City of Bellevue is a "public employer" within the meaning of RCW 41.56.030(1), and has collective bargaining relationships with several bargaining representatives.

2.         The Bellevue Police Officers Guild, a "bargaining representative" within the meaning of RCW 41.56.030(3), represents a bargaining unit of non-supervisory law enforcement employees in the City of Bellevue Police Department. At all times pertinent to the instant proceedings, Chris Vick served as attorney for the union.

3.         Officer Stephen Cercone is a member of the bargaining unit represented by the Bellevue Police Officers Guild. In July, 1991, Officer Cercone became involved in a situation which led to an internal investigation by police department management personnel. At all times pertinent to the instant proceedings, Lieutenant William Ferguson served as the department's internal affairs officer.

4.         On July 23, 1991, Ferguson conducted an investigatory interview with Cercone. Vick attended the meeting in his capacity as union attorney. The meeting was tape recorded without objection from the union.

5.         At the beginning of the interview, Ferguson gave Cercone a document titled "Internal Affairs Advisement Form", which contained specific questions about the incident leading to the investigation. Vick asked to review the document, but Ferguson refused to let him see it. Ferguson also informed Vick that he could not take an active part in the interview, and could only observe the proceedings.

6.         When Vick expressed concerns about the procedure, Ferguson delayed the interview and left the room to seek legal counsel. When he returned, Ferguson stated that the interview would continue without Vick's participation. Vick remained in the room, but did not take part in the investigation.

7.         After the interview concluded, Ferguson reviewed the tape recording, and found that the tape was unusable. Ferguson informed Cercone that a second interview was necessary.

8.         The second interview was conducted several days after the first interview. Cercone was accompanied to the second interview by a union shop steward. The interview consisted of Cercone answering the same questions he answered in the first interview. Ferguson typed the answers and allowed Cercone to review to final document.

9.         On July 29, 1991, the union filed the instant unfair labor practice complaint.

10.       On August 29, 1991, Michael Zimmerman, labor consultant for the union, sent a letter to Chief of Police Joseph Smith, requesting the contents of Cercone's investigatory file. Smith refused to provide the file.

11.       On August 30, 1991, Cercone, Zimmerman and a union steward met with Chief Smith and Deputy Chief Garnett Arcand in a disciplinary hearing. By that time, Smith had not made a final decision concerning the discipline to be imposed on Cercone. Cercone was asked if he had any new information to bring forward. He did not.

12.       Chief Smith subsequently sent Cercone a notice of discipline, directing that Cercone be suspended for 40 hours.

13.       In September, 1991, Arcand informed Cercone that Cercone would not be transferred to a detective's position. The transfer was denied because of the events leading to the internal investigation.

14.       At an unspecified time, the city changed the "advisement form" to allow union representatives the opportunity to participate in investigatory interviews. A third interview of Cercone was conducted by the employer in March, 1992, when Cercone was directed to sign the new form, but no new information was put forth at the meeting. The level of discipline remained unchanged.

CONCLUSIONS OF LAW

1.         The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW.

2.         By events described in Findings of Fact 4, 5, 6, and 7, above, the respondent committed unfair labor practices within the meaning of RCW 41.56.140(1) and (2), by interfering with the rights of a bargaining unit employee to have union representation at a disciplinary interview.

3.         By events described in Finding of Fact 11, the respondent committed unfair labor practices within the meaning of RCW 41.56.140(1) and (2) by refusing to provide information needed by the union to process grievances.

ORDER

Pursuant to RCW 41.56.160 of the Public Employees' Collective Bargaining Act, it is ordered that the City of Bellevue, its officers and agents immediately:

1.         Cease and desist from:

a.                                 Refusing to allow union representation at investigatory interviews.

b.                                 Refusing to provide, upon request, information concerning disciplinary matters that will be needed for grievance processing.

c.                                 In any like or related manner, interfering with, restraining or coercing employees in the exercise of their rights under Chapter 41.56 RCW.

2.         Take the following affirmative actions to remedy the unfair labor practices and effectuate the purposes of Chapter 41.56 RCW:

a.                                 Withdraw the discipline to be imposed on Officer Stephen Cercone, and remove all references of the discipline from his permanent work record.

b.                                 Upon request, provide information concerning disciplinary matters to the Bellevue Police Officers Guild for grievance processing purposes.

c.                                 Post, in conspicuous places on the employer's premises where notices to employees are customarily posted, copies of the notice attached hereto. Such notice shall, after being duly signed by an authorized representative of Public Safety Employees, Local 519, be and remain posted for sixty (60) days. Reasonable steps shall be taken by the union to ensure that said notices are not removed, altered, defaced, or covered by other material.

d.                                Notify the complainant, in writing, within twenty (20) days following the date of the Order, as to what steps have been taken to comply herewith, and at the same time provide the complainant with a signed copy of the notice required by this Order.

e.                                 Notify the Executive Director of the Public Employment Relations Commission, in writing, within twenty (20) days following the date of this Order, as to what steps have been taken to comply herewith, and at the same time provide the Executive Director with a signed copy of the notice required by this Order.

ENTERED at Olympia, Washington, this 22nd day of March, 1993.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

KENNETH J. LATSCH, Examiner

This Order may be appealed

by filing a Petition for

Review with the Commission

pursuant to WAC 391-45-350.