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Florida Public Employee Relations Commission: Union Representative Can’t Be Muzzled During Investigation

Tue March 7, 2023 Public Servant Associations
Conor Flynn, Senior Litigation Attorney, Donnelly + Gross

A recent order from Florida’s Public Employee Relations Commission (PERC) states that public employers commit an unfair labor practice and violate Florida law when they refuse to allow a public employee’s representative to question the employee on the record during an investigatory interview. To ensure compliance by public employers, union members and their representatives should bring their own recording devices to and obtain consent to record co-investigatory interviews.

The order resulted from a dispute between the Department of Highway Safety and Motor Vehicles (Department) and Florida Highway Patrol Trooper Maddux. The parties were covered by a collective bargaining agreement (CBA), the Department is a public employer per section 447.203(2), Florida Statutes, and Maddux is a public employee within the meaning of section 447.203(3), Florida Statutes.

FHP received a complaint regarding Trooper Maddux. Following review of the complaint, an FHP Lieutenant sent Trooper Maddux a memorandum notifying Maddux that he was the subject of a complaint under investigation. The memorandum directed Trooper Maddux to appear for an investigatory interview and stated that, if Trooper Maddux had a representative with him at the interview, that “Representatives may act only as observers and are not entitled to speak for you or inhibit your responses.” Union-represented employees are entitled, upon request, to have a representative present during any interview that the employee reasonably believes could lead to discipline. See N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975).

Trooper Maddux arrived for the investigatory interview with Martin White, his Union representative and attorney. White brought his own device to record the interview, a tactic that proved critical for next steps. While Lieutenant Burgess questioned Trooper Maddux, White remained quiet and did not interrupt. Once Lieutenant Burgess finished his questioning, Burgess sought to end the interview and turn off the recording device. White advised that he intended to ask Trooper Maddux questions on the record.

Burgess turned off the “official” recording device prior to White’s questioning. White asked Burgess to resume recording, so that White’s questioning of Maddux would be part of the formal record. Burgess refused. The hearing officer observed that White remained calm and professional, even providing Burgess with caselaw: Guevara v. School Board of Miami-Dade County, Florida, 48 FPER ¶ 343 (2022). Burgess refused to include White’s questioning of Trooper Maddux on the record; Trooper Maddux subsequently filed a charge against the Department for failing to permit White to question Maddux on the record.

The hearing officer provided the following summary of a representative’s permissible scope of representation:

A representative’s permissible scope of participation is examined on a spectrum between mandatory silence and adversarial confrontation. At one end of the spectrum, an employer that requires the employee’s representative to serve as a passive witness or in mandatory silence violates the employee’s Weingarten rights. At the other end of the spectrum, a representative of the employee who creates an adversarial contest is not protected by Weingarten. Guevara, 48 FPER ¶ 43, and cases discussed therein. Thus, the appropriate role of the employee’s representative is to elicit facts and to take an active role in assisting the employee to present the facts. Id. Weingarten and its progeny require a fact-intensive analysis of the investigatory interview at issue to determine whether a violation has occurred. This is necessary because the conduct of both the employer and representative in such interviews requires a fact-specific approach that acknowledges the careful Weingarten balance between employer prerogative and employee right. Id.

The hearing officer – whose report PERC adopted and approved – concluded that the Department violated Maddux’s Weingarten right to have a representative participate in representing him during the April 13 investigatory interview, and the Department violated section 447.501(1)(a), Florida Statutes. The hearing officer also found that Maddux was entitled to attorney’s fees and costs related to the litigation.

This publication is for general information only and intended for clients and friends of Donnelly + Gross.  It should not be relied upon as legal advice as the law related to each situation varies. The sharing of this information does not establish a client relationship.