In October 2019, the police chief for the City of Elgin, Illinois announced officer shift assignments for the following calendar year. Officers chose their vacation days for 2020 based on seniority. Brett Essick, who had been a City police officer for over a decade, was assigned to the midnight shift for the following year and selected his vacation days accordingly. However, two months later he was re-assigned to the day shift for 2020, and a supervisor told him he would have to re-select his vacation. On December 18, 2019, Essick emailed Commander Bisceglie expressing his preference for the vacation days he already selected. Bisceglie replied that he was under the impression that a superior officer had advised Essick “prior to the vacation book even starting not to plan anything as Essick would be moving to days and his picks would be made on days.” Essick claimed that he had already planned two trips based on his initial vacation allotment, to which Bisceglie replied that he was “willing to be reasonable especially if Essick had booked and paid for two trips already.” Bisceglie asked for a meeting with Essick where he could see documentation of any bookings for trips and the timing of the bookings, so he could make his decision.
At some point after this exchange, Essick emailed a copy of a hotel reservation confirmation, which did not include the booking dates. Then, on December 21, he emailed Bisceglie stating he received the confirmation on November 27, and on December 30, Bisceglie received an envelope containing the confirmation and a cover email dated November 27. On January 8, 2020, Bisceglie and Essick met in person. Bisceglie asked Essick to show him the email from the hotel, which Essick could not do because he claimed he did not remember his email password.
On January 21, Bisceglie asked Essick to meet with him and a lieutenant. Bisceglie ordered Essick to call the hotel to confirm the booking date. Essick claims, and the City denies, that he requested union representation, because he believed he could be disciplined during the meeting, and that Bisceglie denied his request. Bisceglie would later testify that he told Essick, “you can have whoever you’d like in here, but you are still going to have to make a phone call” and that a union representative was not needed. Essick called and the hotel agent confirmed he made the reservation on December 9, sometime after he was directed not to make travel plans while his vacation issue was being resolved, and after the November 27 confirmation email that Essick provided. The following day, Essick was informed that he was under internal investigation.
Essick was placed on paid administrative leave and in May 2020, the City issued him a Loudermill notice. The City also advised him that he would be subject to a formal interrogation. The Arbitrator would later find that during said interrogation in April 2021, Essick admitted to knowingly misrepresenting and altering the booking confirmation email to November 27 with the intent to deceive his employer and retain his original vacation days. The City sent Essick a termination notice in July 2021. Essick filed a grievance through his union, which went to arbitration.
The Arbitrator denied Essick’s grievance in October 2023, finding that the City had just cause to discharge Essick for his dishonesty. The Arbitrator rejected Essick’s argument that the City violated his Weingarten rights by denying his request for union representation at the January 21, 2020, meeting. Specifically, the Arbitrator found that Essick waived the right when he called the hotel as ordered and did not reiterate his request for a union representative. Essick filed a ULP with the Illinois Labor Relations Board for the Weingarten violation, and the City filed a motion to dismiss, requesting the Board defer to the Arbitrator’s determination that the City had not violated Essick’s Weingarten rights.
Under the Public Labor Relations Act (PLRA), employees have a right to union representation when “(1) the meeting is investigatory; (2) the employee reasonably believes that disciplinary action may result; and (3) the employee makes a legitimate request for union representation.” The ALJ found Essick’s case satisfied all three elements. First, the meeting was investigatory because Bisceglie wanted to learn when Essick booked the hotels. Second, given what Essick knew in that moment – that he had misrepresented information to his employer – his expectation of disciplinary action was reasonable. Third, per the Arbitrator’s findings, Essick requested union representation, which Bisceglie acknowledged but said was not needed.
Following an employee’s request, an employer has three options: “(1) deny the request, discontinue the interview and obtain the information by other means; (2) wait until the union representative arrives before commencing with or continuing the interview; or (3) request that the employee waive his right to union representation.” Waiver of Weingarten rights “must be clear and unmistakable.”
The ALJ disagreed with the Arbitrator’s determination that Essick waived his right to union representation. The Arbitrator relied on a record that largely consisted of testimony from the command officers in attendance at the meeting, not Essick. The Arbitrator also made unfounded assumptions about Essick’s knowledge of his rights, concluding that an officer who had served for over ten years could not be “simply unaware of his right to insist on the presence of his representative.” The ALJ disagreed with the Arbitrator’s finding that Essick’s compliance with Bisceglie’s order to call the hotel could constitute a waiver of his Weingarten rights. Considering these findings, the ALJ recommended the Board deny the City’s motion.
The Board adopted the ALJ’s recommendations, holding “that the Arbitrator’s Weingarten analysis is clearly repugnant to the purposes and policies of the PLRA.” In particular, the Arbitrator’s determination that Essick waived his representation rights was “based on meager facts – Essick’s status as a police officer of ten years, the existence of his initial request for representation, and his failure to repeat his request once made.” The Arbitrator disregarded the fact that Essick may have been subject to intimidation at the meeting. As a result, the Board adopted the ALJ’s findings and denied the City’s motion, permitting the ULP to proceed to a hearing on the merits before the Board.
Brett Essick and City of Elgin, 40 PERI ¶ 118 (Ill. Lab. Rel. Bd., 2024).