Need the School District turn over investigative materials to the union?
Contrary to common belief, unions are generally not entitled to witness statements and administrators’ interview notes created during the investigation of alleged employee misconduct resulting in disciplinary action. Although unions frequently demand, and employers provide, such investigatory documents, absent express contract language requiring disclosure, an employer is not legally required to do so.
Although the law is well established that in order to satisfy its duty to bargain in good faith pursuant to the Public Employment Relations Act, a public employer must supply in a timely manner requested information which will permit the union to engage in collective bargaining and to police the administration of the labor contract, including information necessary for the processing of grievances, exceptions to this rule exist.
One such exception applies here. For many years the Michigan Employment Relations Commission “MERC” has consistently ruled that internal investigative notes, reports, and witness statements pertaining to alleged employee conduct fall within a confidential information exception to the general disclosure obligation and need not be provided by the employer to the union. Within Kent County (Sheriff), 1991 MERC Lab Op 374, 377, the MERC clearly stated this conclusion, as follows:
…internal investigations conducted for the purpose of determining whether or not there was employee misconduct, falls [sic] within the confidential information exception.
In so ruling, the MERC has noted that it is essential that internal investigations into allegations of misconduct by public employees proceed unencumbered by concerns that information uncovered therein will be subject to disclosure.
It must be noted, however, that in the event that the employer calls an informant as a witness in an arbitration or other formal proceeding regarding the disciplined employee, the employer must then, upon demand, provide the union with the witnesses’ prior statement and investigatory notes pertaining thereto.
Lastly, generally speaking, witness statements and investigatory notes also fall under exceptions to disclosure pursuant to the Freedom of Information Act and thus the FOIA does not provide the union a viable alternative route to such information.
We hope you will appreciate knowing that the school district’s investigatory documentation is its information, and not also that of the union!