Robert Hendricks is the local vice president of the Pennsylvania State Corrections Officers Association (PSCOA) at Progress Community Corrections Center (PCCC). In February 2021, Lieutenant Allen Lynch summoned Corrections Monitor Jason Henry to an investigative interview regarding allegations of racially insensitive remarks. Henry requested that Robert Hendricks be present at the interview as his Weingarten representative. PCCC granted the request and permitted Henry and Hendricks to have a private caucus before beginning the interview.
PCCC explained that the purpose of the interview was to investigate whether Henry made a racially insensitive remark, as alleged by a coworker. Henry denied the allegation, and requested another caucus with Hendricks, which was granted. When they returned, the focus of the interview switched to Henry’s credibility, and whether he was telling the truth to PCCC representatives. At one point, Hendricks requested another caucus, which was denied. Ultimately, PCCC determined that Henry had made the insensitive remark and issued him a written reprimand.
PSCOA filed an unfair labor practice charge with the state labor board, alleging that PCCC improperly denied Hendricks’ request for a private caucus. After a hearing, the labor board’s hearing examiner agreed with PSCOA. The Pennsylvania Department of Corrections (DOC) appealed, arguing that only the employee – and not his union representative – has the right to request a private caucus, and that Hendricks exceeded the bounds of his role during the investigatory interview by doing so. The labor board was not persuaded and upheld the hearing examiner’s decision.
DOC appealed again to the Commonwealth Court, which interpreted Weingarten to permit both the individual being questioned and the union representative to request a caucus once the employer engaged in a new line of questioning which could lead to additional or different discipline: “We conclude that the broad language from Weingarten discussing employee rights is applicable here. We are persuaded by the Supreme Court’s suggestions that a union representative’s presence includes participation and that an unrepresented employee may be led by fear or ignorance to fail to protect his own rights. A knowledgeable union representative is indispensable in such circumstances, yet requiring such a representative to stand mute when the employee’s right should be asserted is tantamount to denying representation altogether.
“Accordingly, consistent with our Supreme Court’s recommendation to follow NLRB cases interpreting provisions of the NLRA similar to the PERA, we hold that a Weingarten representative has a right to request a private caucus with an employee to the same extent that the employee himself could make such a request. Absent any such inappropriate conduct, Union Representative was entitled as Employee’s representative to request a private caucus at appropriate times. Specifically, in this case, Union Representative, as well as Employee, had the right to request a caucus at the point of the interview where the subject matter of the questions shifted to a new issue not the subject of a previous caucus, and which could have resulted in additional discipline.”
Department of Corrections v. Pennsylvania Labor Relations Board, No. 1369 C.D. 2022, 2024 WL 188343 (Pa. Commw. Ct.).