Argued: March 13, 2013
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge
BERNARD L. McGINLEY, Judge
The Pennsylvania State Troopers Association (PSTA) petitions for review of a final order of the Pennsylvania Labor Relations Board (PLRB) which held that the Pennsylvania State Police (PSP) did not violate Sections 6(1)(a) and (e) of the Pennsylvania Labor Relations Act (PLRA) and Act 111 when it deprived Corporal Edmund Fret (Corporal Fret) of Weingarten representation during an Internal Affairs Division (IAD) interview on July 22, 2009.
In July 2009, the IAD was investigating allegations of misbehavior against a PSP member. As part of that investigation, Sergeant Jeffrey Balut (Sergeant Balut), an official serving on the Bureau of Integrity and Professional Affairs, IAD, was assigned to conduct "witness" interviews of Trooper Jeffrey Winters (Trooper Winters) and Corporal Fret. Neither Corporal Fret nor Trooper Winters was the subject of the underlying investigation.
The interviews were prescheduled. Trooper Winters' interview was scheduled for Wednesday, July 22, 2009. Corporal Fret's interview was scheduled for Friday, July 24, 2009. Each made arrangements with PSTA to have union representation for their respective interviews.
Prior to the interviews, Sergeant Balut was advised by his Lieutenant that neither Trooper Winters nor Corporal Fret were to be afforded union representation "per the Chief Counsel's Office."
On Wednesday, July 22, 2009, Sergeant Balut interviewed Trooper Winters. Also present was Corporal Scott Walck (Corporal Walck), a member of the PSP who appeared at Weingarten interviews on behalf of bargaining unit members as a union representative.
Trooper Winters told Sergeant Balut that he wanted representation because he was concerned that there may "be an allegation that what he would say in the interview would have been a lie, and that they would possibly BPR [Bureau of Professional Responsibility] him for it." Notes of Testimony, August 29, 2011 (N.T.), at 23; R.R. at 38a. According to Trooper Winters, he was approached by a civilian employee who told him "if you don't say what I think you should say, there's going to be problems, you might get an IA [Internal Affairs] filed against you." N.T. at 54; R.R. at 69a. Trooper Winters was concerned that he "would be the subject of an IAD investigation depending on what he said in the interview." N.T. at 25; R.R. at 40a.
Sergeant Balut telephoned his Lieutenant who agreed that Trooper Winters could have a union representative at the interview.
At the conclusion of Trooper Winters' interview, Sergeant Balut informed Corporal Walck that he wished to interview Corporal Fret next, and that Corporal Fret would not be afforded union representation. N.T. at 16; R.R. at 31a.
Corporal Walck accompanied Sergeant Balut to Archibald, Pennsylvania, where Corporal Fret was conducting school bus inspections. Corporal Fret stated that he had prescheduled his interview for that upcoming Friday and he had arranged for union representation to be present then. Sergeant Balut advised Corporal Fret that while he was the "subject of the interview" he was not the "subject of the investigation." Therefore, he was not entitled to representation. Corporal Fret responded, "Well, I still want to protect myself; I want an FOP [Fraternal Order of Police] rep." N.T. at 32; R.R. at 47a.
At that point, Sergeant Balut placed a call to his Lieutenant while Corporal Fret called the PSTA.
After both finished their respective calls, Sergeant Balut summoned Corporal Walck. Then with all three men in the car, Sergeant Balut read Corporal Fret his ...