Investigative Interviewing: Psychology, Method and Practice

by Ferraro (CPP, SPHR), Eugene

  The case was appealed. On appeal, the U.S. Supreme Court affirmed the NLRB

  decision that union employees are entitled upon request to union representation during investigative interviews that they reasonably believe might lead to discipline. The Court found, however, a fact finder is not bound to advise the union member of this right. If the employee requests and insists upon representation, the investigator may advise the employee that the interview may be discontinued. The employee may waive this right and participate in the meeting without representation, or forego the interview and the opportunity to present his side of the matter.

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  The Court said that in such circumstances, the employer is free to continue its investigation, with or without the interview, and to take appropriate disciplinary action based upon the information it is otherwise able to derive. The Court also said if an interview is conducted with a representative present, the interviewer is not obligated to bargain with that representative, and that the role of the representative is to assist the employee, but not to answer the questions.

  However, the role of the representative is not one of a “passive observer.” In Pacific Telephone and Telegraph, the NLRB ruled it was an unfair labor practice for the company to not advise two employees (who were to be disciplined for the unauthorized installation of a telephone in one’s home) and their union steward the purpose of the meeting after they requested to know before it was conducted.25 Further, the court held it was an unfair labor practice to deny the employees and steward (and two other employees and steward in a companion case) a preconference meeting once a steward requested it. The request did not have to come directly from the employee. But, in Southwest Bel , the U.S. Court of Appeals held the right of representation was not violated when a union steward was asked not to interfere with the questioning, but was permitted to consult with an employee before the investigatory meeting and was free to make comments, suggestions, and clarifications after the interview.26

  By permitting union representation in investigatory interviews while restricting the role of the union representative, the NLRB and courts are attempting to balance the right of employees to engage in concerted activities for mutual protection with the right of the employers to investigate and to take reasonable measures to protect their properties and businesses.

  Before concluding this section, it should be noted the right of nonunion

  employees to co-employee representation can quickly change. In 2000, the

  NLRB ruled nonunion employees were entitled to co-worker representation; the

  U.S. Court of Appeals upheld this decision in 2001; but, in 2004, the NLRB

  reversed its position and returned to the long-standing view that the right of

  representation did not extend to nonunion employees. Because this is not the

  first time the NLRB has briefly flirted with granting nonunion employees a right of co-employee representation, fact finders should note the NLRB often reflects the labor policy of the president and this issue might arise again when changes in administration occur.27

  Tip: While nonunion employees are generally not entitled to co-employee representation, employers should contemplate such request during the planning and preparation phase. Refusing representation can be risky. It can raise other issues about motive, methods, and trust. If it is granted, there are other issues. Is it a co-employee of choice? What if the co-employee is also a subject? What is the role of the co-employee? These are decisions best answered before raised in an interview.

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  7.6.3 Investigations into Protected Concerted Activities

  The NLRB and the courts fully recognize the right of employers to take reasonable measures to protect their businesses and to investigate suspicions of misconduct by all employees, but such investigations may not include overly broad or intrusive surveillances, interviews, undercover operations, and other investigative inquiries that infringe upon or “chill” the employees’ rights to organize, collectively bargain, and engage in other protected concerted activities.

  In Parsippany, the U.S. Court of Appeals concurred that a hotel had a “legitimate business interest” in protecting its guests; however, it affirmed that it was an unfair labor practice for an employer during a labor organization drive to beef up its security staff and then have those officers conduct surveillance in the workplace on the employees that advocated the union.28 In Unbelievable, the U.S. Court of Appeals affirmed it was an unfair labor practice when the chief of security eavesdropped on a conversation between an employee and union representative talking in a breakroom that was an authorized area for visits.29 Further, it was an unfair practice when the employer expelled the representative based upon what was overheard.

  When employees engage in protected organizational and protest activities, the

  documenting of these activities by video recording of participants may be viewed as an unfair labor practice to coerce or intimidate employees from exercising their rights. When those activities include threats, vandalism, violence, or other unlawful activities, employers are justified in enhancing surveillance activities. But, enhanced surveillance activities should not focus on or be overly inclusive of lawful activities of union members.

  In Horsehead Resource Development Company, the company, based on volatile contract negotiations and in anticipation of a lockout or strike, installed a camera at its front gate and in two vehicles that were used for interior patrols.30 The evening after the last negotiation session, the hotel where the company negotiators were staying received a bomb threat. Later that evening the plant mysteriously lost its power and lights on two occasions, and the old office trailer was set on fire. On the first day of the lockout, the company discovered several acts of sabotage and a drawing of a rifle scope aimed at a man labeled “Yankee Scab.” The front gate camera was left on the first day and thereafter it “was turned on whenever company personnel … crossed the picket line to enter or leave the plant.” After someone attempted to run a manager off the road, the cameras in the vehicles were used

  during the escorting of the shuttle vans between the plant and hotel. These cameras also were used to observe union members who were peaceful and off company

  property as “they parked their cars, gathered to talk in the shade, or moved to and from the picket shack and the portable restroom.” The cameras also documented

  acts of “misconduct on the part of four employees that was sufficiently serious to justify their discharge.”

  The misconduct involved placing “jackrocks” (six-pronged objects constructed

  from bent nails) and roofing nails in the road to puncture tires, using a slingshot to

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  shoot ball bearings at a truck and through the windshield of a car, and spitting in the face of a security guard as he drove through the picket line.

  The union filed unfair labor charges against the company for its use of the cameras. The U.S. Court of Appeals held:

  It was clearly not an unfair labor practice to photograph the four mis-

  creants. Likewise, the videotaping of company vehicles crossing the

  picket line and the use of camera cars to patrol the plant perimeter

  and escort replacement employees did not interfere with employees’

  protected concerted activity. These were justified precautions against

  potential violence.

  For the most part, however, the picketing seems to have been peace-

  ful. To the extent that the Board’s finding of an unfair labor practice

  was based on surveillance that went beyond videotaping the access to

  front gate, the plant perimeter, and the company cars, we conclude

  that it was supported by substantial evidence. The surveillance of union

  members who were in no way engaged with company personnel or

  property, but
were merely talking among themselves or moving to and

  from the picket shack and the portable restroom, was unjustified. We

  are satisfied that it was within the Board’s province to find that [the

  company] went too far in its surveillance.

  In California Acrylic Industries, the U.S. Court of Appeals held it was an unfair labor practice for an employer to videotape a lunch hour meeting between employees and union representatives talking on a public sidewalk.31 Allegedly, the company felt “something might happen” and videotaped to protect against possible

  union vandalism and trespass. The court affirmed this was insufficient justification in light of the chilling effect of videotaping upon employees in the exercise of their protected rights.

  In National Steel and Shipbuilding Co., the company placed a camera on a tri-pod on top of a building to monitor a gate and large parking lot where the unions, which were working without a contract, conducted rallies every morning with about 100 persons present.32 The company monitored these rallies for approximately four months. Even though there were three to four security officers stationed at a guard station next to the gate and there were two permanent cameras, the company tried to justify the decision to install the extra camera based on a history of strikes every 4 years for the past 12 years and acts of violence during those strikes.

  The U.S. Court of Appeals affirmed the NLRB ruling that the use of this extra

  camera was an unfair labor practice because the incidents of violence cited were too remote in time and occurred during strikes, and the union was actually working

  without a contract and was not out on strike. The court and NLRB rejected the

  company’s argument there was no tendency to coerce by its use of the camera on

  the grounds that at least 100 employees showed up every morning and the company

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  had never taken any reprisal action against any employees. The court stated this did not prove the other 2,900 employees didn’t feel coercion and the lack of disciplinary action did not prove there was no fear of reprisal.

  In conclusion, video surveillance is often most appropriate for documenting

  destructive and unlawful employee activities in progress. Also, when there is a reasonable objective basis for anticipating disruptive behavior, a company may engage in limited videotaping of protected activities; for example, video recording a truck entering a plant when employees in the immediate past have blocked the entrance or video recording managers entering a plant when they have been threatened or

  attacked in the recent past. Care should be taken to avoid videotaping protected concerted activity.

  7.6.4 Federal Preemption and State Tort Actions

  As noted, federal labor law preempts state courts from deciding issues that fall under the jurisdiction of the NLRB. One such situation is when the employer

  and an employee’s union have entered into a collective bargaining agreement that covers the nature of the employee’s complaint. In that situation, section 301 of the Labor Management Relations Act (LMRA) allows the union to sue for breach of

  the collective bargaining agreement. The U.S. Supreme Court has said that is to the exclusion of the worker; in other words, only the union, not the worker, can sue, except in some limited circumstances (see Allis-Chalmers Corp. v. Lueck, 471 U.S.

  202, 220 (1985)). The deciding factor in this type of case is whether the collective bargaining agreement does or does not need to be interpreted to determine whether the alleged tortuous conduct was committed (see Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06 (1988)). If the union contract does not need to be interpreted, then the aggrieved employee will be permitted to proceed with the state tort claim(s). This might mean, as discussed above, that he could sue his employer for some type of wrongful discharge claim, or even the investigator for claims related to the investigation. However, if the collective bargaining agreement does need to be interpreted, his claims are preempted and decided under federal labor law. The answer to whether a collective bargaining agreement does or does not need to be interpreted depends on the alleged tort(s) and the contract language.

  In Hanley, a cashier failed to properly enter seven of eight transactions in a blind security test where money was left on her register.33 After signing an admission that she often saved the money for the end of her shift and used it to balance the register, but never for personal gain, she was terminated. She filed suit. She claimed she was

  “interrogated” in a backroom, verbally detained even though she wanted to leave, threatened with arrest, and promised no other action would be taken if she confessed. The Supreme Court of Montana held the LMRA §301 did not preempt her

  state tort claims because it was not necessary to interpret the union–management contract to decide the issues of false imprisonment, intimidation, emotional distress, slander, and employer negligence. It reinstated the suit against the company.

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  In Blanchard, the company, based on information provided by employees and police, hired an outside firm to conduct an undercover investigation.34 Months

  later, two other investigators were retained to interview employees implicated in the investigation. The employees were interviewed in an office where all the windows were covered with paper. Allegedly, each was falsely told that there was substantial evidence of their individual drug use, advised they would be terminated if they left the interviews, promised they would not be discharged if they confessed, and told they had the right to union representation. Twelve employees, who made

  self-incriminating statements, were discharged. Four of the employees, whose discharges were affirmed in binding arbitration, filed suit. In part, the suit contained state tort claims of intentional infliction of emotional distress, false imprisonment, invasion of privacy, and fraud (false promise that no other action would be taken against them). The company argued the tort claims were preempted by the LMRA.

  The U.S. District Court held the privacy claim was preempted because the labor

  contract contained language pertinent to the use of controlled substances. The false imprisonment claim also was preempted because the alleged threat of termination for failing to answer questions pertaining to violations of work safety rules required an examination of the company authority under the labor contract to direct the

  activities of the employees and to investigate and take appropriate disciplinary actions for violation. The court also ruled the allegations of fraud and emotional distress, if fraud was first proved, might be decided without reference to the labor contract, and it permitted plaintiffs to continue with these two claims.

  In Cramer, the employer, a large trucking company concerned about driver drug use and dealings, installed cameras in the restrooms used by its drivers, both female and male.35 Employees in two separate lawsuits, one a class action and other with 282 plaintiffs, filed invasion of privacy and emotional distress claims in state court. The company removed the cases to federal court on the grounds they were

  preempted under the LMRA because the company was allowed under the collec-

  tive bargaining contract to use cameras in employee theft and dishonest cases. The U.S. Court of Appeals held it was not necessary to interpret the labor contract to decide these cases. The conduct of the company was in violation of the state criminal code. Further, the collective bargaining agreement could not make illegal conduct under state law legal. Absent any federal question, the appeals court remanded the consolidated cases back to state court for further adjudication on the merits of the claims.

  7.6.5 Union Contract Restrictions

  Fact finders in unionized environments should review the applicable collective bargaining agreement(s) before undertaking an investigation. It will often set forth the burden that the employer has agreed is necessary to justify discipline. Common

  requirements set forth in
these contracts include such terms as cause, just cause, good cause, and other similar language. Although the exact meaning of these terms

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  may vary, all of them place a burden upon the employer to produce evidence to support the discipline. A termination may be subject to arbitration if the union appeals.

  Other restrictions may be placed on workplace investigation in a unionized

  environment. For example, an employer and union may contractually agree that

  organizational interviewers will advise union members of the right to union representation prior to investigatory interviews. Further, both parties may agree that no investigative disciplinary interviews will be conducted without a representative and even a stenographer being present. A union and employer may agree that a

  union member cannot be questioned about the conduct of another union member.

  Further, a union and company may agree whether drug testing or use of drug dogs will or will not be permitted. The important point is that workplace fact finders must be aware of and abide by any pertinent conditions negotiated into the collective bargaining agreements.

  7.6.6 Arbitration

  Binding arbitration is a process where two or more parties (usually management

  and union, but such clauses are being inserted with more frequency into manage-

  ment and professional contracts) contractually agree to use an independent party to review and decide disputes between the parties. Arbitration decisions are generally final and may be appealed to the courts only on very limited grounds. Usually, arbitrators are not bound by earlier decisions of other arbitrators on the same issues, and, thus, arbitration decisions are sometimes quite unpredictable.