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Question About Use of Force Incident Triggers Right to Representation

Question About Use of Force Incident Triggers Right to Representation

New York State Correctional Officers and Police Benevolent Association represents correctional officers in the New York State prison system. Ian Wolfe is a Corrections Officer and member of the Association. Wolfe was told several days in advance that he would be questioned by Special Assistant Gary Simpson but was not told what the subject matter of the questioning would be.

Wolfe was witness to a use of force incident that left an inmate with a swollen right eye with a cut above it. Wolfe did not file any report of the incident even though the Department’s rules require all employees to report all threatening behavior.

Prior to his meeting with Simpson, Wolfe asked if he was a target of disciplinary action and, if so, he wanted to request union representation. According to Wolfe, Simpson stated that union representation was unwarranted because Wolfe was not a target at the time.

During the interview Wolfe asked if he was being interrogated and requested union representation, but Simpson responded that he was not entitled to union representation. Once again during the 3 hour questioning Wolfe asked for representation but was denied by Simpson. The Association filed an unfair labor practice complaint alleging that the denial of the requests for representation violated the Weingarten Rule.

An administrative law judge upheld the complaint, stating that the key issue was that Wolfe reasonably believed that an employee is a potential subject or target of discipline. The judge stated that the objective facts in the record amply demonstrate that at the time Wolfe was questioned, it reasonably appeared to him that he was a potential subject of target of discipline. The State argued that the questioning of Wolfe by Simpson was witness preparation not an interrogation. The judge ruled that Simpson did not fully comprehend the role Wolfe played in the incident and that he might have been involved in the use of force in question, and therefore, this was not simply witness preparation.

New York State Correctional Officers, 48 PERB 4546 (N.Y. PERB ALJ 2015).

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