P.E.R.C. No. 2002-8, NJ/State (State Police)

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matters of STATE OF NEW JERSEY, DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF STATE POLICE, Respondent, -and- Docket No. CO-H-98-401 STATE TROOPERS FRATERNAL ASSOCIATION, Charging Party. STATE OF NEW JERSEY, DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF STATE POLICE, Respondent, -and- Docket No. CO-H-98-413 STATE TROOPERS NCO ASSOCIATION, Charging Party. STATE OF NEW JERSEY, DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF STATE POLICE, Respondent, -and- Docket No. CO-H-99-109 STATE TROOPERS FRATERNAL ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, John J. Farmer, Jr., Attorney General ¶

(Sally Ann Fields, Senior Deputy Attorney General, of counsel) ¶

For the Charging Parties, Loccke & Correia, P.A., attorneys (Charles J. Sciarra, of counsel) ¶

DECISION ¶

On May 11 and 15, 1998, the State Troopers Fraternal Association and the State Troopers NCO Association filed unfair practice charges (CO-98-401 and CO-98-413, respectively) against the State of New Jersey, Department of Law and Public Safety, Division of State Police. The charges allege that the employer violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq ., specifically 5.4a(1), (3) and (5)1/ and N.J.S.A . 34:13A-21,2/ by refusing to allow Trooper Joseph Farro and Sergeant Steven Brook to have a union representative with them during interviews they reasonably believed could lead to discipline. The charges also allege that, during interest arbitration, the employer engaged in union discrimination and repudiated established terms and conditions of employment. The ¶

Note1/ These provisions prohibit public employers, their representatives or agents from: "(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act. (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act; [and] (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative." ¶

2/ This provision states: "During the pendency of proceedings before the [interest] arbitrator, existing wages, hours and other conditions of employment shall not be changed by action of either party without the consent of the other...." ¶

unions sought an order prohibiting the employer from changing an alleged practice of permitting union representation for unit members who reasonably believe they may be subject to discipline. ¶

On June 9, 1998, the STFA and NCO filed amended charges containing essentially the same allegations set forth in the original charges. ¶

On October 15, 1998, a consolidated Complaint and Notice of Hearing issued. ¶

On November 5, 1998, the employer filed an Answer. It admitted that Farro and Brook requested union representation and that the requests were denied. It asserted that it had a legitimate justification for each denial and that it did not change terms and conditions of employment. ¶

On October 16, 1998, the STFA filed another unfair practice charge (CO-99-109). That charge alleges that the employer violated the Act by denying union representation to Detective Robert Walker during an interview that he reasonably believed could lead to discipline. The STFA sought the same remedy, but also sought to suppress any information obtained in the meeting from being considered in any disciplinary action. ¶

On January 5, 1999, a Complaint and Notice of Hearing on the new charge issued. On April 11, the employer filed an Answer admitting that Walker's representative asked to be present at the meeting and that the request was denied. The employer denied violating the Act and raised affirmative defenses similar to those in the other cases. ¶

On April 12 1999, Hearing Examiner Arnold H. Zudick consolidated the two Complaints and began the hearing. Four other days of hearing ensued, ending on June 18, 1999. The parties examined witnesses and introduced exhibits, and the Hearing Examiner denied motions for dismissal and summary judgment. The parties also filed post-hearing briefs. ¶

On April 27, 2000, the Hearing Examiner recommended dismissing the Complaint. H.E. No. 2000-9, 26 NJPER 330 (¶31135 2000). He reviewed the principle entitling an employee to union representation during an investigatory interview that the employee reasonably believes may result in discipline. That principle was established in the private sector in NLRB v. Weingarten, Inc., 420 U.S . 251 (1975), and is known as the Weingarten rule. The Weingarten rule was adopted by us in East Brunswick Bd. of Ed ., P.E.R.C. No. 80-31, 5 NJPER 398, 399 (¶10206 1979), aff'd in part, rev'd in part, NJPER Supp.2d 78 (¶61 App. Div. 1980), and approved by our Supreme Court in UMDNJ and CIR , 144 N.J. 511 (1996). ¶

Applying Weingarten , the Hearing Examiner found that Farro and Brook requested union representation during investigatory interviews, but concluded that they did not have reasonable grounds to believe that their interviews could result in discipline. Both were concerned that they had been summoned to an interview that was part of an internal investigation by the employer's Equal Employment Opportunity/Affirmative Action Bureau (EEO/AA), but neither thought he had done anything wrong. Finding no reasonable belief that the interviews might lead to discipline, the Hearing Examiner recommended dismissing those allegations. ¶

The Hearing Examiner also recommended dismissing the allegations concerning Walker. Walker was interviewed as part of a licensing investigation concerning possible citizen misconduct. The Hearing Examiner concluded that this meeting was not an investigatory interview as contemplated by Weingarten because Walker's superior officers were simply seeking the name of a source from him rather than investigating his own behavior. ¶

The Hearing Examiner also found that there was no practice of allowing union representation whenever a trooper stated a belief that he or she might be subject to discipline. Nor was there a policy or practice of telling a witness, as opposed to a principal, the nature of a complaint or the name of a complainant. ¶

Finally, the Hearing Examiner found no evidence of a contractual repudiation and stated that any alleged contractual violation could be contested through the grievance procedure. ¶

On July 24, 2000, the charging parties filed exceptions. They argue that the Hearing Examiner erred in: finding that the employer did not have a practice of telling a witness the name of the complainant and the nature of the complaint; placing too high a burden on the employee regarding a reasonable belief that he or she might be subject to discipline; finding that the Walker meeting was not an investigatory interview under Weingarten; ¶

crediting the employer's witnesses over the charging parties' witnesses; and dismissing the remaining aspects of the Complaint. The charging parties also requested oral argument. ¶

On September 27, 2000, the employer filed its answering brief. It asks that the exceptions be disregarded because they do not specify each challenged question of procedure, fact, law or policy. See N.J.A.C . 19:14-7.3(b). It further argues that since the employer identified the complainant to Farro and Brook, it is irrelevant whether there was a practice of telling witnesses the identity of the complainant. Concerning its denial of Weingarten representation to Farro, Brook, and Walker, it asks us to accept the Hearing Examiner's findings and credibility determinations. ¶

On April 26, 2001, we heard oral argument. At our request, the parties also submitted statements of position regarding an Appellate Division decision issued two days earlier. In re Carroll, 339 N.J. Super. 429 (App. Div. 2001). ¶

We have reviewed the record. We adopt and incorporate the Hearing Examiner's findings of fact (H.E. at 6-49), with the minor modifications discussed in the next two paragraphs. We specifically reject the charging parties' contentions that the Hearing Examiner's findings were not objective and that his credibility determinations should not be accepted. The Hearing Examiner saw and heard the witnesses and was in a better position than we are to determine whether one witness was more credible than another. Clowes v. Terminix Intern., Inc., 109 N.J. 575, 587-588 (1988). ¶

We modify finding 3 to the extent it analyzes Lieutenant McCabe's testimony about the meaning of the contract and the SOP provisions requiring the employer to identify the name of the complainant before any questioning. These documents apply to internal investigations of suspected employee misconduct, like the investigation of the EEO complaint that led to Farro and Brook being interviewed and unlike the external investigation that led to Walker being interviewed. Farro and Brook were told the name of the complainant and the nature of the complaint before they were interviewed so we need not decide whether the employer was contractually required to disclose that information in all witness interviews. ¶

We supplement finding 11. Farro explained why he was concerned about an interview that would cover his entire career: ¶

A.[In] twelve years I have been in a lot of capacities including an acting squad leader, or assistant squad leader. ¶

Someone came forward and said I witnessed something; I have to be concerned about it because if you witness something and don't do something about it then there is a problem, then there can be disciplinary action, so sure I was concerned about it. [3T114] ¶

We supplement finding 15. The Hearing Examiner credited testimony of Walter Butz, Chief of the Intelligence Bureau, concerning a conversation he had with David Jones, STFA representative, in which Jones assured Butz that Walker would disclose the name of his source and Butz assured Jones and Walker that Walker would not be investigated or disciplined for refusing to disclose the source earlier. We quote two portions of Butz's testimony. The first portion is this: ¶

A. [Jones] said, "he is going to give you the source of the information." ¶

I said, "that's all we are looking for who the source is." ¶

And I believe at that point he says, "as long as there is not going to be an internal investigation he is going to tell you the source." ¶

I said, "Dave, there has never been an internal investigation, what we are looking for is who the source is." ¶

He said, "okay, in that case he is going to tell you." [3T26-3T27] ¶

The second portion is this: ¶

Q What did David Jones say to you with respect to an internal investigation pre-meeting? ¶

A That...he will tell you who the source is as long as there won't be an internal investigation. ¶

Q What did you say in response? ¶

A I said, "Dave, all we have been doing is trying to find out who the source is", inferring there isn't going to be an internal investigation. ¶

Q Did you make any promises about an internal investigation? ¶

A I never used the word "promise." I just said "that's all we have been trying to find out who the source is. We are not looking to institute an internal investigation." [5T39] ¶

Based on this testimony and other credited testimony (4T132- 4T134), we find that the sole purpose of the meeting with Butz was to find out Walker's source so that the licensing investigation could continue and that Butz assured Walker that he would not be disciplined for not having disclosed that source earlier. ¶

We reject the respondent's request that we disregard the charging parties' exceptions. They are specific enough to allow us to analyze the issues raised. We turn now to a discussion of the Weingarten principles and how they apply to the principal/witness distinction drawn by the employer, the internal race-discrimination investigation involving Brook and Farro, and the external licensing investigation involving Walker. ¶

Weingarten Principles ¶

The United States and New Jersey Supreme Courts agree that an employee has a right to request a union representative's assistance during an investigatory interview that an employee reasonably believes may lead to discipline. NLRB v. Weingarten; UMDNJ and CIR . The courts' decisions, however, also place conditions on the exercise of the Weingarten right. In two recent decisions, we traced both the contours of the Weingarten right and the conditions placed on the exercise of that right. State of New Jersey (Dept. of Treasury), P.E.R.C. No. 2001-51, 27 NJPER 167 (¶32056 2001); State of New Jersey (Dept. of Human Services), P.E.R.C. No. 2001-52, 27 NJPER 177 (¶32057 2001). We will summarize that discussion and refer the reader to those cases for elaboration and citations. ¶

Under Weingarten , an employee may demand union representation at an investigatory interview given a reasonable belief that the interview could result in discipline. However, the Weingarten right will not apply if the following conditions for its exercise are not met. ¶

First, the employee who is to be interviewed must request representation. Absent a request, there will be no violation. ¶

Second, the interview must be investigatory. For example, the Weingarten right does not attach to a meeting called solely to announce a disciplinary action or to such business-related conversations as giving instructions, training employees, or correcting techniques. A corollary to this second condition is that there must be a reasonable basis for a belief that the investigatory interview may result in discipline. The test for ascertaining whether a reasonable belief exists is an objective one, not a subjective one focussing on the employee's or employer's state of mind. See Lennox Industries, Inc. v. NLRB, ¶

637 F .2d 340 (5th Cir. 1981) (Weingarten requires showing both that an interview was investigatory and that an employee could reasonably fear discipline as a result). ¶

Third, the right to representation may not interfere with legitimate employer prerogatives. One such prerogative is to decide not to interview an employee at all if the employee insists upon representation; the employee must then choose between having an interview unaccompanied by a representative or having no interview. ¶

Fourth, while the employer cannot compel a representative to remain silent during an interview, it does not have a duty to bargain with the representative. A representative may assist the employee and attempt to clarify the facts, but may not obstruct the employer's right to conduct that interview or turn it into an adversarial contest. ¶

The Weingarten right and its conditions are essentially the same in the New Jersey public sector as in the private sector. However, the nature of an employer's governmental business may be relevant to answering such questions as whether an interview is an investigatory one or whether an employee had a reasonable belief that discipline might result from an interview. For example, in UMDNJ, our Supreme Court considered how the Weingarten rule applies to teaching hospital interns who are both employees and students. The Court held that the Weingarten right does apply to internal investigations of interns, but terminates once it becomes clear that the proceedings are based solely on academic and medical concerns. Id. at 537. The Court reasoned that allowing Weingarten representation when such concerns were at stake would unduly interfere with the university's interest in academic freedom. ¶

In analyzing how Weingarten applies in this case, we must take into account the nature of State Police operations and be alert to any special needs employees may have for Weingarten representation and any special interests the employer may have in conducting its governmental operations. In State v. State Troopers Fraternal Ass'n, 134 N.J . 393 (1993), our Supreme Court viewed the State Police as a unique, quasi-military institution, distinguishable from all other local police forces and state agencies by virtue of a statutory scheme designed "to give the Superintendent [of the State Police] a great deal of flexibility and reasonably unrestricted control in his preliminary evaluation of the members of the State Police force." Id. at 415, quoting from Dunbar v. Kelly, 114 N.J. Super . 450, 453 (App. Div. 1971), certif. den. 59 N.J . 528 (1971). Further, in holding that the discipline amendment did not apply to troopers, the Court observed that their discipline "implicates not only the proper conduct of those engaged in the most significant aspects of law enforcement, involving the public safety and the apprehension of dangerous criminals, but also the overall effectiveness, performance standards and morale of the State Police." Id. at 416-417. ¶

We now apply the Weingarten principles to the principal/witness distinction, the Farro and Brook interviews, and the Walker interview. ¶

The Principal/Witness Distinction ¶

The parties' contracts and the employer's standard operating procedures address internal investigations of officers suspected of violating a rule or regulation or accused of other wrongdoing. The contracts and procedures recognize that an officer may be interviewed in one of two capacities: as a principal or a witness. The principal is the officer who is the target of the investigation. A witness is an officer who is being questioned about a complaint or incident involving another employee's suspected wrongdoing. The contracts and SOP make clear that a principal is entitled to a Weingarten representative. A question presented in this case is when, if ever, a witness is entitled to a Weingarten representative. ¶

The charging parties assert that officers interviewed as witnesses during an internal affairs or EEO investigation have contractual rights to be told the identity of the complainant and the nature of the complaint and to request and have a Weingarten representative. We need not resolve these contractual questions since Brook and Farro were told the name of the complainant and the nature of the complaint before the questioning started. Thus, no factual dispute requires us to decide whether the identity of a complainant or the nature of the complaint must be disclosed. ¶

Further, the contractual issues raised are not so easy to resolve as to warrant finding a bad faith repudiation rather than a mere breach of contract issue. State of New Jersey (Dept. of Human Services), P.E.R.C. No. 84-148, 10 NJPER 419 (¶15191 1984). ¶

While we do not believe that a Weingarten representative is statutorily required in every witness interview, we also reject the employer's point of view that a Weingarten representative is never required in any witness interview. The Hearing Examiner properly concluded that the right of a witness to a Weingarten representative must be decided on the facts of each case. That is clearly the approach in the federal sector and should be the approach in the New Jersey public sector as well. See AFGE, Local 2544 v. FLRA, 779 F .2d 719 (D.C. Cir. 1985); IRS v. FLRA, 671 F .2d 560 (D.C. Cir. 1982); cf. In re Carroll (even though granted use immunity in connection with criminal investigation, sheriff's officer should have been allowed to consult with attorney and union representative about internal investigation interview). We thus turn to the facts of the Brook and Farro interviews to see whether union representation was warranted in their situations. ¶

Brook and Farro ¶

Brook and Farro were interviewed as witnesses during an internal investigation of a complaint of racial discrimination by an unnamed trooper or troopers against officer Wendell Davis. It is undisputed that their interviews were investigatory under Weingarten. The Hearing Examiner found that they met all requirements for having a Weingarten representative at these investigatory interviews except one -- they did not have a reasonable belief that discipline might result from these interviews. Under all the circumstances, we hold that the reasonable belief standard has been met. ¶

We deem it very significant that Farro and Brook were interviewed as part of an internal investigation of a complaint of racial discrimination. The public has a compelling interest in a workplace free of racial and sexual discrimination. Garfinkel v. ¶

Morristown Obstetrics & Gynecological Ass'n., N.J. (2001); New Jersey Turnpike Auth. v. New Jersey Turnpike Supervisors Ass'n, 143 N.J . 185 (1996). Management must provide such a workplace and ensure that its supervisors are committed to that goal. As stated in Taylor v. Metzger, 152 N.J. 490, 503-504 (1998): ¶

A supervisor has a unique role in shaping the work environment. Part of a supervisor's responsibilities is the duty to prevent, avoid, and rectify invidious harassment in the workplace.... An employer has a clear duty not only to take strong and aggressive measures to prevent invidious harassment, but also to correct and remediate promptly such conduct when it occurs. ¶

Management will be liable if its supervisors tolerate racial discrimination and are not disciplined for letting it occur. See Payton v. New Jersey Turnpike Auth., 148 N.J . 524 (1997); Lehman v. Toys 'R' Us Inc., 132 N.J . 587 (1993). And a supervisor is liable to discipline if he or she witnessed an incident of racial discrimination and did not correct or report it. Compare INS v. FLRA, 671 F.2d 560 (D.C. Cir 1982) (witness entitled to Weingarten representative in interview concerning alleged misconduct of patrol agents since witness could be disciplined if he failed to report misconduct). ¶

Farro had been an acting squad leader. He was told that the investigation would cover "the last 12 years" -- that is, going back to 1986. According to Farro, "a lot of flags went up" given the wide-open scope of the investigation. He was worried because if someone came forward and said he had witnessed a racial incident, he could be disciplined for not doing something about it. Brook was a superior officer; he too was worried about the scope of the investigation since he was given no information about what events or time period it would cover. Brook and Farro were told only the name of the complainant and even that information was not disclosed until immediately before their interviews. While their interrogator may have known that the investigation would center on a specific incident, no limiting information was passed on to Farro and Brook to dissipate their understandable worries about such free-ranging interviews. From an objective point of view, an officer in their shoes had reason to believe that the interviews could potentially lead to discipline given their supervisory duties. The line between being a "principal" and being a "witness" is thin indeed when a supervisor is interviewed as a "witness" about an unreported incident of racial discrimination. ¶

It is true that Farro and Brook did not believe that they had done anything wrong and did not tell their interviewer that they thought they could be disciplined. However, the Weingarten right is not limited to wrongdoers or conditioned upon an admission of possible guilt and a union representative's assistance may be especially helpful to an innocent employee seeking to present his or her side of a story or to clarify any confusion. Indeed, Weingarten itself involved an employee who was innocent of the charge being investigated. Conditioning the right to representation upon the employee's belief in his or her guilt would make a request itself an admission of wrongdoing rather than simply the invocation of a procedural right to assistance. That's too steep a price to pay for exercising the right. Instead, the relevant inquiry is whether an employee in the position of Farro and Brook had a reasonable basis, from an objective perspective, for fearing the possibility of being disciplined -- rightly or wrongly -- as a result of the interview. Under all the circumstances presented, the answer is yes. Dover Municipal Utilities Auth., P.E.R.C. No. 84-132, 10 NJPER 333 (¶15157 1984). ¶

At oral argument, the respondent asserted that allowing Weingarten representation for Farro and Brook would result in the untenable conclusion that all witnesses in every investigation would have a right to union representation (T40). That is not so. Our holdings concerning Farro and Brook, on the one hand, and Walker, on the other, are grounded in an application of traditional Weingarten principles to the specific facts and credibility determinations presented in each context. ¶

In sum, the charging parties have proven that all the Weingarten standards have been met with respect to the Farro and Brook interviews, including the requirement that there be a reasonable basis for believing that an interview may result in discipline. The facts persuade us, given the supervisory roles of Farro and Brook and the open-ended scope of the investigation, that such a reasonable basis existed. We therefore hold that the employer violated the Weingarten rule when it did not grant the requests of Farro and Brook for union representation at their internal EEO interviews. ¶

Walker ¶

The Farro and Brook interviews present the "classic Weingarten problem" (T32) since they were part of an internal investigation centered on alleged employee misconduct. Both parties accepted that the interviews were investigatory under Weingarten . Although they disagreed about whether a reasonable fear of discipline existed. With respect to the Walker interview, by contrast, the parties vigorously dispute whether the interview was an investigatory one under Weingarten. ¶

Unlike Farro and Brook, Walker was not interviewed as part of an internal investigation of alleged employee misconduct. Instead, he was interviewed as part of a licensing investigation of alleged citizen misconduct, specifically an investigation by the Casino Intelligence Unit of a rumor that a corporate executive had been seen with the daughter of a organized crime figure at the Foxwood Casino. If verified, the sighting could have hurt the corporation's ability to obtain a casino license. ¶

The normal business of the State Police generally, and the Casino Intelligence Unit specifically, is to conduct such investigations. Considering all the facts of this case, the Hearing Examiner concluded that the interview was part of and limited to the employer's normal investigative business rather than an investigation of suspected employee misconduct. Given the Hearing Examiner's findings of fact and especially given his credibility determinations, we agree. We summarize the facts before explaining our reasoning. ¶

During his investigation of the rumor, Lieutenant David Grusemeyer learned that Walker, a subordinate, had information about the rumor. Grusemeyer questioned Walker and Walker told him that a friend of his who worked on the Foxwood Casino floor had told him about the sighting. Grusemeyer asked Walker to name his source, but Walker refused. He did not believe Grusemeyer was ordering him to tell so he did not. ¶

Grusemeyer reported this conversation to his supervisors and was instructed to interview Walker again. Grusemeyer again told Walker he had to disclose his friend's name and Walker again refused. ¶

Grusemeyer reported back to his superiors, including Butz, the Chief of the Intelligence Bureau. It was decided that Butz and Grusemeyer would meet with Walker and Butz would order Walker to reveal the name of his source. ¶

When Walker learned about the meeting, he called Butz and asked him what the meeting was about and whether he was being accused of leaking information. Butz responded that he was just trying to find out Walker's source. Walker then said he was worried that if he disclosed that name, his friend might lose his job. ¶

Walker then contacted the STFA which assigned Detective David Jones to represent him. Jones told Walker he had an obligation to reveal his source to the officers in his chain of command -- Grusemeyer and Butz. Butz also contacted the Internal Affairs Bureau and confirmed that he would be on firm ground if he ordered Walker to disclose his source. ¶

Jones accompanied Walker to his meeting with Butz and told Butz that he was there at Walker's request to be his Weingarten representative. Butz explained that the meeting was part of an criminal investigation, not an internal affairs investigation; that he was seeking to discover Walker's source only; and that Walker was not entitled to representation. Butz said he contacted headquarters and his superiors confirmed that union representation was not warranted. Jones agreed that Walker was obligated to reveal his source and assured Butz that he would do so, but Jones still wanted to be there to hear the questions and answers. ¶

When Jones continued to argue, Butz offered to arrange a telephone conference with Jones and Leon Brozowski of Internal Affairs so Brozowski could tell Jones why he could not attend the interview. Jones declined this offer, saying it was not necessary because Walker would tell the name of the source as long as there was no internal investigation. Butz assured Jones that he simply wanted the name of Walker's source so that the licensing investigation could be pursued and that Walker would not be investigated or disciplined because he had not disclosed his source earlier. Jones left. ¶

Since the meeting was not part of an internal affairs investigation, Walker was not asked to sign a principal or witness form. Before Butz could issue an order or even ask a question, Walker named his source -- a retired State Police Captain who works for another casino -- and explained why he had made up a story about a friend working for the Foxwood Casino. ¶

Surprised by Walker's statement, Butz immediately stopped the meeting. He then told Walker to get Jones back in the room since his having lied about his source before could lead to an internal investigation. Jones came back in. ¶

The question is whether the employer violated the Act when it denied Walker a union representative when the meeting with Butz began. Under all the circumstances, our answer is no. ¶

The employer emphasizes that the State Police was conducting a licensing investigation as part of its normal operations. To further that external investigation, it had an undisputed right to order Walker to disclose his source. It had a further right to have that order issued by the Chief of the Intelligence Bureau. We agree with these observations and add that they sharply distinguish the Walker situation from the classic Weingarten situation such as that presented by the Farro and Brook interviews. Nevertheless, consistent with our earlier analysis of the principal/witness distinction, we reject any per se rule that would deny Weingarten representation during every interview conducted as part of an externally-focused investigation. Instead, we will consider all the facts in each case to see if, from an objective perspective, the interview involves an investigation of employee misconduct. ¶

We begin with what was alleged, but not proven in this case. Before the Hearing Examiner, the charging parties tried to prove certain allegations which would have made this case very different if they had been accepted. For example, Walker testified that at his first meeting with Grusemeyer, Grusemeyer told him that someone would either lose his job or go to jail and that this threat led him to seek union representation. Walker also testified that he told Butz that "I know something is going to be coming down the road." Had these been the facts proven, we most likely would have held that Walker was entitled to representation. But the Hearing Examiner found, and we have no basis for disagreeing, that the charging party did not carry its burden of proving these assertions. We therefore must disregard this testimony. ¶

We also note that at oral argument the charging parties relied on certain other testimony which could have been relevant to determining whether this interview was an investigatory one under Weingarten despite being part of an external investigation. For example, it was asserted that Walker told Grusemeyer "time and time again, I have a disciplinary problem here" and that Walker directed Grusemeyer's attention to a problem with "perks or something with regard to comps or something like that going on in AC." It was also asserted that Walker told his superior officers that disclosing his source was "going to create problems for him" (T24-T25). However, the Hearing Examiner made credibility determinations and did not accept that testimony. We therefore disregard it also. ¶

The salient facts of this case, as found by the Hearing Examiner and supported by the record, are these. Butz had no intention of disciplining Walker for not having disclosed his source earlier and gave an assurance that Walker would not be disciplined for that reason -- Butz's sole purpose was to obtain Walker's source so the investigation could proceed. Compare East Brunswick (sole purpose of interview was to arrange schedule for recouping overpayments, not to investigate why employee cashed checks); contrast Lennox (interview focussed on past work deficiencies and altercation with supervisor). Butz was assured that Walker would disclose his source. Neither Walker nor Jones gave him any pre-interview basis for believing that, once the source was disclosed, any complications might arise that could lead to discipline. At the moment the meeting began, there was no objective basis for characterizing the meeting as an investigatory interview rather than a licensing investigation. The moment it became clear that the meeting had potential disciplinary ramifications, Butz stopped it until Walker could call his Weingarten representative back into the room. We believe that ¶

Butz acted properly both in initially denying Weingarten representation and in subsequently granting it. ¶

We note two particular aspects of the Walker situation. First, having a Weingarten representative present at the beginning of the interview would not have changed the fact that Butz had a right to order Walker to disclose his source and Walker had a duty to obey. A union representative could not have counselled Walker to refuse to disclose the information or prevented him from getting into trouble once he did so. Second, the employer did not have the normal prerogative recognized by Weingarten of choosing not to have the interview if it did not want to allow union representation, but still wanted to secure the information sought. The only way to have Walker disclose Walker's source was to meet with Walker. ¶

We also note that Butz's asking the Internal Affairs Unit to confirm his right to order Walker to disclose his source does not suggest that the interview was focussed on Walker's past conduct -- instead, it underlines Butz's consistent and clear intent to secure the information needed to investigate the casino/organized crime rumor. Finally, that a labor relations officer called Butz is irrelevant since it was the STFA that sought that unit's involvement. Indeed, Butz assured the officer that there was no internal affairs investigation going on and that he was simply pursuing the licensing investigation. ¶

At oral argument, the charging parties asked us to focus our analysis on the result of the Walker interview -- that he was "disciplined" -- and to rule that representation must be provided at the outset of an interview whenever the interview itself ends in an employee being subject to discipline. The record does not make clear whether or how Walker was disciplined. Even if we assume he was, that fact alone would not necessarily establish that the employer violated the Act by denying him union representative during his interview. It would still need to be shown that an objective basis for Weingarten representation existed at the time the interview began. As we have said, we do not believe, given the facts, that such an objective basis existed. Only Walker knew that he might be in trouble once he disclosed his source; he had not shared that concern with either his superior officers or his union representative. If we were to find a right to union representation based on Walker's subjective and secret knowledge, we would effectively require an employer conducting externally-focused investigations to grant union representation whenever requested or risk unfair practice liability based on a later disclosure of unknown information. ¶

In sum, the parties dispute whether the interview was an investigatory one under Weingarten . Given the Hearing Examiner's credibility determinations, the facts do not persuade us that the meeting with Walker met that standard. We therefore hold that the employer did not violate the Weingarten rule when it did not grant Walker's request for union representation at his meeting with Butz. ¶

Finally, in the absence of specific charging party exceptions, we dismiss the remaining allegations in the Complaints. To remedy the violation we have found, we issue the following order. ¶

OrderORDER ¶

The State of New Jersey, Department of Law and Public Safety, Division of State Police is ordered to: ¶

A. Cease and desist from: ¶

1. Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, particularly by refusing to provide a union representative, upon request, to employees who could reasonably believe that they might be subject to discipline as a result of interviews conducted as part of an EEO investigation covering periods when they had supervisory responsibilities. ¶

Take this action: ¶

1. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "A." Copies of such notice shall, after being signed by the Respondent's authorized representative, be posted immediately and maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials. ¶

2. Within twenty (20) days of receipt of this decision, notify the Chair of the Commission of the steps the Respondent has taken to comply with this order. ¶

The remaining allegations in the Complaints are dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, Madonna, McGlynn, Muscato, Ricci and Sandman voted in favor of this decision. None opposed. ¶

DATED: July 26, 2001 ¶

Trenton, New Jersey ¶

ISSUED: July 27, 2001 ¶