MERC Adopts ALJ Opinion That Employer May Ban Recordings of Investigatory Interviews

Kacie Kefgen

By Kacie Kefgen, MASB Assistant Director of Labor Relations and Legal Services

DashBoard, Feb. 1, 2017

MERC has adopted Administrative Law Judge Travis Calderwood’s Decision and Recommended Order that an employer may refuse a union’s request to record investigatory interviews of its bargaining unit members.

In June 2015, the Kent County Deputy Sheriffs Association filed an unfair labor practice charge against Kent County and the Kent County Sheriff after the employer unilaterally terminated the long-standing practice of allowing union representatives to record investigatory interviews of bargaining unit members.

The union claimed that this new policy violated the Public Employment Relations Act because it infringed on the bargaining unit members’ rights and is an unlawful interference with the administration of a labor organization. The union also argued that the recording of investigatory interviews is a mandatory subject of bargaining, and the employer, therefore, could not unilaterally change the policy.

Does banning the recording of investigatory interviews restrict the rights of bargaining unit members to have union representation at investigatory interviews?

ALJ Calderwood discussed the reasoning in NLRB v Weingarten, Inc, 420 US 251 (1971), and pointed out that a “balance must be struck between an employer’s right to conduct its investigation without interference and an employee’s right of assistance from the union during such an investigation.” ALJ Calderwood concluded that “restricting a union from recording an investigatory interview does not constitute a violation of Section 10(1)(a) of PERA or in any way is contrary to the principles set forth in Weingarten or its progeny cases as issued by the Commission.”

Does prohibiting the recording of an investigatory interview a violation of the union’s right to freely govern its internal affairs?

The union claimed that the employer unlawfully interfered “with the Union’s right under Section 10(1)(b) of PERA to freely govern its internal affairs.” The union argued that protecting itself from liability is a part of its right to freely govern its internal affairs, and it was vital for the union to record interviews for future use if a member were to bring a claim against the union. ALJ Calderwood agreed that the union has a right to protect itself from liability, but he disagreed that recording interviews was a vital part of that protection. He concluded that the employer’s ban on the recordings was not a violation of PERA.

Is this a permissive or mandatory subject of bargaining?

ALJ Calderwood determined that the recording of investigatory interviews is a permissive subject of bargaining. He likened this case to the facts presented in Wayne County Community College, 16 MPER 19 (2003) in which an ALJ found that an employer did not violate its duty to bargain by insisting that a court reporter record a termination hearing because it did not impact wages, hours or other conditions of employment.

May an employer lawfully restrict a union from recording an investigatory interview?

Yes, says ALJ Calderwood. He found that conducting an investigatory interview was a management duty, and “the employer may conduct that interview in whatever manner it sees fit as a part of management prerogative so long as its actions do not violate established law or contractual provisions.”

For more MERC updates, plan to attend MASB's Labor Relations Conference, Feb. 24, at the Radisson Hotel in Lansing. More details and registration information are available here.

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