"Labor Relations Information System. My name is will aitchison. I'll be your host today while we go over. What are this is really going to be sort of a jam packed podcast? There'd been a lot of stuff going on that I wanNA talk about but I wanNA start on somewhat somewhat of a personal note. I'm recording this on January. Second the first Thursday of twenty twenty and I opened up the papers this morning opened up the papers. You still say that I actually went to a whole bunch of news feeds on the Internet and they dominant story involving the public safety. Labor world is a photograph that has been posted on a social media account of a group of it. Looks like about about twenty five or so Detroit firefighters posing in front of a burned house. It looks like one of those end zone celebrations that that you have in the national football league that are now aloud on its firefighters in their full turnouts axes and everything posing in front of a fully involved involved house The head of the Detroit Fire Department has already announced. There's going to be investigations and referred or to the photograph and the act of posing Ford as despicable There are justifications that are being offered that the house was empty. Thank goodness That the house was far too involved to put out a fire to do anything other than contain it. And make sure it didn't spread but I suspect those justifications expectations aren't going to get in the way of disciplined for those firefighters. A wider photo. They were celebrating the retirement of Italian chafe. Well because we're at the start of the year and and people you know historically make New Year resolution's can I propose pose a couple of them dealing with social media first of all for all public safety employees who are out there. Stop stop posting anything about your jobs. Stop posting anything about politics. We I have seen hundreds of police officers. Deputy Sheriff's troopers firefighters get fired and two thousand nineteen because they wanted to share their innermost thoughts with the World Socia- social media posts are forever and remember member. There's no such thing as a private social media webpage just simply stop at this good fulcrum right a good point on which we can turn the start of the New Year and not have any more posts about the job or politics. And secondly if you're going to post post something on social media make it positive and I say this from a broader perspective than just the world. We live in dealing with public safety labor issues. I say this from the perspective of the world that we're living in. There's just simply too much negativity I'll vow myself. I'll go the entirety of two thousand twenty without one negative social media post. Can we all do without okay enough of that onto the cases and I want to start with a case out of California. It's a small police department. The oakdale police department and California. They only have twenty two officers and they managed to conduct opt-in internal affairs investigation. That did just about everything wrong. And not only that they actually hired a consultant to do it as as you know small agencies don't always have dedicated internal affairs or something like it Department so they will occasionally only contact contract with an outside investigator and so wasn't Oakdale. So what what kind of spectacularly wrong in Oakdale. Well this all starts on March twenty six two thousand eighteen. There's a lieutenant in the police department And he's worried worried about how the video files from. Body Cams are indexed and he loved into the Department System To check it out and and he brought his concerns to the police. Chief Fella named Scott Heller and what they were pouring over was an unusual filed that had been marked delete and what the file was deleted. It was just marked. Delete what the file was was a video clip from the body Cam of someone who's identified in the report that I read only as Sergeant A. Hey and what it contained was a video that where a body cam had inadvertently been left on during a morning. roll-call and briefing. And you know what if you have a policy bodycam policy where The employer has has the ability to randomly review videos for evidence of potential misconduct. These sorts of cases are going to happen. Right you're they're going to record interactions that are not positive interactions It's kind of inevitable. That's one of the downsides of that random review or trolling trawling or whatever you WANNA call it sort of policy. Well that's the policy. They have in Oakdale. And so what do they see on this video video. The video record sergeant a and again this is during morning. Roll call and briefing and in the briefing room Rome afterwards. It records sergeant a saying something to the effect that sergeant be another sergeant finally had his dream come true. What was the dream? He was able to arrest a black person. Sergeant a made the statement while holding up a picture of a symbol bowl that was associated with white supremacy suggesting that the picture belong to sergeant. Be sergeant and aides comments related to an arrest that sergeant be it made during the prior shift where one of the suspects taken into custody was African American. There were other officers present in the briefing room and the opinion I read calls them officers C. D. and E.. So that's that's the you misconduct. That the chief chief Eller sees on the video what does he do. He retains an independent investigator. Take a look into the conduct in the video. Well I guess you can understand going out to an independent investigator and a case where you've got five of twenty two officers who are captured on the video Well no word artist to how they found this particular independent investigator so the investigator decides you know what I'm GonNa do is I'm gonNA divide these people up And sergeant a is going to be the subject of the Investigation Sergeant B and officers so d. n. e.. I am going to label as witnesses. The investigator talks with the chief. The chief says look all the witness officers. Sergeant Sergeant be and the other three. I want you to give them instructions that they are not to discuss the investigation with anyone. Okay let's stop. I pause for just a moment. Had things gone wrong already. Yeah they've gone wrong already. They've gone wrong already in two ways. The first is that they suspect witness dichotomy. That seemed to be in place here in Oakdale. That's actually irrelevant as to whether or not the officers are entitled to representation under the Winegarden rule. It's it's not the employers designation of a an officer or firefighter who's ever being interviewed. Asa Asa witness or a suspect that matters what matters is does the employee reasonably believe they could be subject to disciplinary action. And if the the answer is yes they get union rep so I think it's really time largely throw out this witness suspect aspect Designation it not only doesn't help at Leeds employers down the wrong road. So that's the first thing that goes strong. Secondly the chief tells the and the investigator order the witnesses not to discuss the investigation investigation as you'll hear me say in a few minutes. That violates California Law and likely the law in every three other state that has a statewide collective bargaining law. Okay so the investigator and meets with officers C. D. and he he and Sergeant Bay gives them pretty much identical notices. It tells them they're not the subject of the investigation. It tells them they do not have the the right to be represented during the interview and it orders them not to discuss the interview or investigation with anyone now. I I usually don't have my union lawyer hat on. When I'm doing these podcasts? I try to keep these things as neutral as I possibly can vape ape possibly can't keep them but on this occasion. Let me put my union hat on for a moment if an employer there is going to violate the law. It's very helpful. If they do so in writing and I can just imagine the lawyer for for the Oakdale Police Association I guess as Police Officers Association Peo- a there. I can just imagine the lawyer looking at this order are there is in black and white. The employer says you're not entitled to a Union rap and you may not discuss this with anyone that that sort of becomes exhibit one. Or that's what that document becomes. Okay so the investigator those on in an interview the various officers When it gets to officer see he instructs officer see that the no contact order that he has given them includes any union representative really? I made you cannot even if if you're going to insist on confidentiality because of the nature of the investigation more on that in a moment. You can't exclude the employees from being able to talk to their union representative that's protected activity under the law. You can't do that by the time. The investigator gets to officer. He not only tells officer e you don't get a representative he he says you don't need a representative and then a follows it up by telling officer e you can be disciplined if you're you're untruthful with as interview okay. Now let's go back to Weingarten again. You're entitled to a representative if you reasonably leap believe you could be subject to discipline as a result of the interview. You tell an officer you don't get any representation because because you're just a witness and then you tell the officer but we can't discipline you if you're untruthful during the interview and then you tell the officer again but you don't get a representative This is just sort of a lovely fact pattern isn't it. Well finally the investigator interviews sergeant urgent a and he orders sergeant a not to discuss the interview or investigation with anyone makes an exception for Ah Sergeant as representative remember sergeant as the suspect and as an investigator says if you failed to obey my directive the no contact order. That'll be grounds for discipline up to and including termination from employment. The association filed unfair Labor practice complaint with California's Public Employment Relations Board And it sort of says I am. I haven't bothered to go read the complaint But I can imagine imagine what it said. was they violated everything everything you can possibly violate about how to do an internal affairs investigation. They actually did it in. I can kind of Magin. That's what the complaint would say of course because lawyers would probably right it it would be much longer and involve billable hours whereas but that's pretty much what the complaint is going to say. It goes to an administrative law judge and the administrative blodget says really less happened. Actually the words that the administrative law judge used or there is no more fundamental no mental right afforded employees under the statutory collective bargaining scheme than the right to communicate with others about working in conditions. Working conditions include the circumstances underlying and surrounding an investigation into alleged employee. Misconduct is conduct. The association has established a prime facial case that the city interfered with employees protected rights when when it issued the confidentiality directed to both the percipient. Witnesses and sergeant a barring them from discussing the investigation Gatien with other employees. I'm not gonNA drone on and on about the rest of the Al Jay's Pinon suffice it to say he finds the obvious S. Weingarten violation And says you know. It really doesn't matter if you're calling witnesses if they reasonably believe they could be disciplined glen and your behavior in this investigation employer leads them to believe that they could be subject to the disciplinary process. I do WANNA conclude with a couple of other lines."