River City Fraternal Order of Police Lodge No. 614, Inc. v. Louisville/Jefferson Cnty. Metro Gov't

RIVER CITY FRATERNAL ORDER OF POLICE LODGE NO. 614, INC. APPELLANT v. LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT;and KENTUCKY LABOR CABINET APPELLEES

NO. 2020-CA-0266-MR

Commonwealth of Kentucky Court of Appeals

APRIL 9, 2021

TO BE PUBLISHED

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE BRIAN C. EDWARDS, JUDGE

ACTION NO. 18-CI-006171

OPINION

AFFIRMING

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BEFORE: CALDWELL, KRAMER, AND MAZE, JUDGES.

KRAMER, JUDGE: The overarching question presented in this appeal is whether the appellee, Louisville/Jefferson County Metro Government, by and through its police department ("LMPD"), committed an unfair labor practice by requiring one of its employees, Sgt. David Mutchler, who was a member and - at the time of these events - President of appellant River City Fraternal Order of Police, Lodge No. 614, Inc. ("FOP") to submit to an investigative interview from LMPD's Professional Standards Unit ("PSU"). This question was adjudicated by the Kentucky Labor Cabinet ("Cabinet") and reviewed by the Jefferson Circuit Court; and both tribunals answered in the negative. Upon review, we affirm.

We begin with a discussion of the relatively brief interview itself, which occurred on August 2, 2017, and concerned a disciplinary matter. Mutchler, testifying not as a party but as a witness, did so in relevant part as follows:

Q: August 2. All righty. And it is 10:47. Okay. Sergeant Mutchler, thanks for having me over. Ah, as you are aware the Chief initiated an investigation into Lieutenant Donny George as filing of a hostile working environment. This investigation is to determine whether these documents that were submitted were deceptive in nature, okay? Ah, during the course of the investigation, there was a memo that turned up by Sergeant Armand [sic] White and that, ah, he indicated that he did not authorize the filing of this hostile working environment by Lieutenant Donny George. In his memo he indicated that he spoke with you as the FOP President regarding this situation. Ah, do you recall having a conversation with Sergeant White, ah, regarding this incident?

MUTCHLER: Um, yes. Ah, and I do need to say that, um, I am obviously complying with the department and the Chief's orders to provide this statement. Um, and I'm, I will obviously do that. Ah, but I do wanna note that, ah, the statement is under protest as we believe, ah, the lodge believes that, ah, request for representation and conversations with the collective bargaining representative, ah, are somewhat privileged. But yes, I do recall a conversation with, ah, with Sergeant White.

Q: Okay. In his memo, ah, and just let the record show I'm looking at the, the memo right now. In his memo he states that, um, they spoke to you by phone and he stated that, that Sergeant Mutchler, he said, did say that, "He thought if I had a problem I would've come to him directly." Let, let me ask you this. At any time during your conversation with Sergeant White, did he indicate that he did not authorize the filing of this hostile working environment or did he indicate that this was filed without his permission?

MUTCHLER: I do not recall that we actually spoke about the hostile work environment filing I guess is, is the proper word. Um, I spoke with him, ah, and I did mention to him that normally, ah, officers would reach out on their own if they had some sort of issue. Um, but it's not, I mean, it's happened before where officers have called or COs have called on other officers, on another officer's behalf. Um, ah, what I recollect from the conversation is generally that, um, he just wanted to be in a situation where he knew who was going to be giving him his orders and his job tasks so he could follow that, ah, and that he did, you know, was, didn't want to be involved in conflicts with those above his rank.

Q: Mm-hm.

MUTCHLER: Um, he just wanted to do his job, basically. Um, I don't recall if, I don't recall the chronology as far as, I don't remember when I was informed that there even was a filing of a, of a hostile work environment. I just knew that I had spoken with Sergeant White, and previously [sic] speaking to him I had spoken with Lieutenant George but I, I don't remember, I don't recall that we did that, if that was discussed or not and I am definitely not saying that that didn't come up.

Q: Mm-hm.

MUTCHLER: But I don't recall in the conversation if he mentioned the hostile working environment or, or even mentioned that he didn't want it to be filed. I don't, unfortunately I talk to hundreds of people and I just don't recall whether that even came up.

Q: Okay.

MUTCHLER: Um, but it's very possible that it did.

Q: Mm-hm.

MUTCHLER: I have to say that. I just, I simply don't recall.

Q: Okay. Ah, that's all I have for you. Thank you so much for letting me come down and I will conclude this interview at 1052 hours.

In short, PSU asked Mutchler three questions: (1) Did he recall having a conversation with Sgt. Armin White? (2) If so, was the conversation about a "hostile working environment" complaint that Lt. Donny George filed on his behalf? And if so, (3) had Sgt. White stated whether he had authorized George to file it on his behalf? Essentially, Mutchler's answers to those three questions were: (1) yes; (2) I can't remember; and (3) I can't remember.

As the substance of what is set forth above tends to indicate, Mutchler was interviewed as part of a PSU investigation relating to a "hostile working environment" complaint that Lt. George - an LMPD officer and one of Sgt. White's supervisors - submitted to his superiors, purportedly on Sgt. White's behalf in January 2017. During PSU's investigation of the complaint, however,Sgt. White denied making the complaint or authorizing Lt. George to file any complaint on his behalf. Consequently, PSU focused its investigation upon whether Lt. George had filed a false report.

As the substance of the August 2, 2017 interview further indicates, PSU investigators only sought to interview Mutchler for a limited reason. Specifically, Sgt. White stated to PSU investigators that he had had a brief telephone conversation with Mutchler relating to this matter at some point after January 2017, but that he did not recall saying anything to Mutchler during their conversation about a purported hostile work environment or about any complaint to that effect. By interviewing Mutchler, PSU wished to corroborate Sgt. White's statement.

As indicated at the onset of this opinion, however, whether Lt. George did or did not file a false report is irrelevant. Rather, the present appeal is exclusively concerned with what Mutchler stated at the onset of his PSU interview:

I do wanna note that, ah, the statement is under protest as we believe, ah, the [FOP] believes that, ah, request for representation and conversations with the collective bargaining representative, ah, are somewhat privileged.

In other words, Mutchler (and the FOP) believed that the LMPD acted improperly at the August 2, 2017 interview because it had required him to divulge privileged information, i.e., information protected by a "union business" privilege. Moreover, on June 26, 2017 - in anticipation of that interview, and with a fullknowledge of its scope - the FOP filed a "charge of unfair labor practice" with the Kentucky Labor Cabinet. There, the FOP set forth its position, stating in relevant part:

[A]n effort to interrogate the Lodge President regarding actions in his role representative of officers in disciplinary matters, constituted unlawful coercion pursuant to provisions of KRS¹ 67C.400, et seq. (the Kentucky statutes establishing collective bargaining between FOP 614 and Louisville Metro), including specifically KRS 67C.406(1)(a) and KRS 67C.402(1), which provisions are based on analog provisions of the National Labor Relations Act.

. . .

Louisville Metro's actions as described above constitute unlawful coercion as prohibited by and made an unfair labor practice in KRS 67C.400 et seq.

As an aside, the bulk of the FOP's arguments before this Court and below have primarily focused upon the following two propositions: (1) Based upon "provisions of the National Labor Relations Act," a "union business" privilege has been recognized in jurisdictions outside of Kentucky; and (2) because KRS 67C.406(1)(a) and KRS 67C.402(1) share similarities with those "provisions" of the National Labor Relations Act, a "union business" privilege should now be recognized in Kentucky.

Regarding what the "union business privilege" is and why it applied here, however, the FOP has never provided any substantive analysis. Instead, and from all appearances of its various pleadings below and brief before this Court, the FOP has simply adopted Mutchler's lay understanding of what it is and why it applied. As illustrated by his October 5, 2017 testimony before the Cabinet regarding the FOP's charge of "unfair labor practice" against LMPD, Mutchler described his understanding of this "privilege" in relevant part as follows:

MUTCHLER: I think that discussions that I have with members as the FOP president as their elected representative, I think a large majority, if not all of those are privileged.

Q: All of them? You think all of them are?

MUTCHLER: I said all or a large majority.

Q: No matter what the circumstances leading to that conversation are?

MUTCHLER: No. Obviously I may even seek legal assistance regarding that. If a member called me up and said they just killed their wife, I don't think that's privileged. So I think it would depend on the circumstance. But if it involved administrative issues where they're speaking to me whether officially or peripherally about representation, I do believe that that should be privileged.

Q: Do you think that's true whether that person is the subject of an investigation or not?

MUTCHLER: I think that when they're contacting me because they may be or may soon be the subject of aninvestigation and they want representation and they need to give me a general idea of what's going on so I can

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