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Pennsylvania State Troopers v. Pennsylvania Labor Relations Board

March 5, 2012

PENNSYLVANIA STATE TROOPERS ASSOCIATION, PETITIONER
v.
PENNSYLVANIA LABOR RELATIONS BOARD,
RESPONDENT :



The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Argued: December 13, 2011

BEFORE: HONORABLE DAN PELLEGRINI, Judge*fn1 HONORABLE ROBERT SIMPSON, Judge

HONORABLE MARY HANNAH LEAVITT, Judge

OPINION

BY JUDGE LEAVITT

The Pennsylvania State Troopers Association (Union) petitions for review of an adjudication of the Pennsylvania Labor Relations Board (Board) holding that the Pennsylvania State Police (State Police) did not commit unfair labor practices when it issued disciplinary action reports against two of its members, which were later rescinded. Union argues that the Board erred because the record showed that the State Police acted with anti-union animus and in a manner that was destructive of employee rights. Concluding that the record does not support these conclusions, we affirm.

On June 19, 2009, Union filed a charge of unfair labor practices with the Board, claiming that the State Police violated Sections 6(1)(a), (c) and (e) of the Pennsylvania Labor Relations Act (Act)*fn2 as read in pari materia with Act 111 of 1968.*fn3 Specifically, Union charged that the State Police violated the Act by issuing disciplinary action reports against Corporal Gerald Williams and Trooper Joseph Plant. Trooper Plant is the President and Corporal Williams the Vice- President of Fraternal Order of Police Lodge 43. The disciplinary action reports stated that Williams and Plant had misrepresented that they had received complaints about a captain and that the two had conducted an unauthorized investigation of said captain. Union contended that the disciplinary action reports were issued in retaliation for Plant's and Williams' protected union activities. Union also contended that the disciplinary action reports were motivated by anti- union animus. The Board assigned the complaint to a hearing examiner.

The hearing began with Williams' testimony. Williams, a 19-year service member, has served as vice-president of the local union for the past ten years. His union duties required him to "sort out or file grievances" on behalf of Union members. Reproduced Record at 27a (R.R. __).

Williams stated that in 2008, "guys" working at the Wyoming barracks approached him and Trooper Plant, complaining that Captain Willard Oliphant, who is in charge of internal affairs for the State Police, was depositing his personal trash at the Wyoming barracks. Oliphant lives near the Wyoming barracks but does not work there. On December 2, 2008, Williams noticed four 32-gallon bags of garbage blocking a police car. The maintenance supervisor, Robert A. Smith, complained to Williams that he was tired of taking care of Oliphant's trash. Williams took a picture of the garbage and showed it to Lieutenant Michael Kreidler, the staff services section commander, explaining that the "guys are tired of seeing Captain Oliphant's trash here ... [and] the maintenance guy is tired of burning his trash, getting rid of his trash." R.R. 30a. Later that day, Williams was called to Captain Donald Peters' office, where he repeated the complaints about Oliphant's trash. Peters said he would take care of the matter and mentioned something about "casting a net and people getting caught up in it." R.R. 32a. Williams inferred from Peters' remark that his complaint about Oliphant's trash would be used against him in some manner.

Williams acknowledged that when the maintenance men were questioned about Oliphant's trash, they denied having ever complained about it. Williams also acknowledged telling Lieutenant Nicholas Saites, who investigated the trash complaint, that the maintenance men did not complain to him. Williams explained that he meant only that the maintenance employees did not file a formal complaint.

Williams testified that during this time frame he, Williams, was the subject of an internal State Police investigation prompted by an e-mail in which Williams referred to the command staff as a "classless, good-ole boy network of commissioned officers." R.R. 280a. This investigation, which was initiated in September 2008 to determine whether Williams' e-mail violated professional standards, was still open when Williams complained about Oliphant.*fn4 Sergeant Jay Livziey set up an interview of Williams for January 6, 2009, but two days later changed it to December 19, 2008. The change was made after Williams informed Livziey that a trial Williams expected would consume much of his time during the month of December had been postponed.

To set up and change the interview dates, Livziey had communicated with Williams by e-mail. Williams detected a change in the tone of Livziey's two e-mails, which became more formal in Williams' view. Williams attributed this change in tone to Williams' intervening complaint about Oliphant.

Trooper Plant also testified. Plant, a 19-year State Police veteran, had served as the president of the local union for the previous ten years. At the time, he was also a member of Union's board of directors, a member of the grievance board and chairman of the disciplinary committee.

In the spring of 2008, Plant received a complaint about Oliphant's trash. He did not remember who first complained, but he explained that over the course of several months it became a topic of discussion. Upon hearing from Williams about Livziey's frosty e-mails, Plant became concerned that Oliphant now had a hand in the investigation of Williams for the alleged unprofessional e- mail. Plant communicated his concern to Lieutenant Colonel John Brown, who oversees the Bureau of Integrity and Professional Standards. Brown informed Plant he would look into the matter.

Plant noted that "almost always" the suspect is interviewed last in an investigation. R.R. 91a. In the case of the trash investigation, however, Oliphant was interviewed first, and Plant and Williams were interviewed last. Plant provided Saites with photographs of Oliphant's trash.

Plant testified that the disciplinary action report issued by Captain Dougherty, the new commanding officer of the barracks, made it difficult for him to discuss Union matters with Dougherty. It hampered his ...


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