Weingarten Rights
UNION REPRESENTATION DURING INVESTIGATIVE MEETINGS
Article 2 Section 3 of the PASS/FAA CBA:
When it is known in advance that the subject of a meeting is to discuss or investigate a disciplinary or potential disciplinary situation concerning that employee, the affected employee shall be so notified of the subject matter in advance. The employee shall also be notified of his/her right to be accompanied by a Union representative if he/she so desires, and shall be given a reasonable opportunity both to obtain such representation, and confer confidentially with the representative before the beginning of the meeting.
If during the course of a meeting it becomes apparent for the first time that discipline or potential discipline could arise, the Employer shall stop the meeting and inform the employee of his/her right to representation if he/she so desires, and provide a reasonable opportunity to both obtain representation and confer confidentially before proceeding with the meeting, if requested. The Union retains the right to determine its representatives in accordance with Article 3 of this Agreement. Such meetings will not be unreasonably delayed due to the unavailability of a Union representative.
This Section applies to the above such meetings conducted by all Management representatives, including DOT/FAA security agents and agents of the Inspector General.
Overview
Weingarten is a short-handed term used to refer to the right of bargaining unit employees to have a union representative present during "investigative interviews" that could lead to disciplinary action if such representation is requested by the employee. The term Weingarten is drawn from a private sector decision, NLRB v. J. Weingarten, Inc., 420 U.S. 252 (1975). The specific right of federal employees to union assistance during investigative interviews is rooted and spelled out in 5 USC 7114(a)(2)(B).
The rights of employees to have present a union representative during investigatory interviews were announced by the U.S. Supreme Court in a 1975 case (NLRB vs. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689). These rights have become known as the Weingarten rights.
Employees have Weingarten rights only during investigatory interviews. An investigatory interview occurs when a supervisor questions an employee to obtain information which could be used as a basis for discipline or asks an employee to defend his or her conduct.
If an employee has a reasonable belief that discipline or other adverse consequences may result from what he or she says, the employee has the right to request union representation. Management is not required to inform the employee of his/her Weingarten rights; it is the employees responsibility to know and request.
When the employee makes the request for a union representative to be present management has three options:
(I) it can stop questioning until the representative arrives.
(2) it can call off the interview or,
(3) it can tell the employee that it will call off the interview unless the employee voluntarily gives up his/her rights to a union representative (an option the employee should always refuse.)
Employers will often assert that the only role of a union representative in an investigatory interview is to observe the discussion. The Supreme Court, however, clearly acknowledges a representative's right to assist and counsel workers during the interview.
The Supreme Court has also ruled that during an investigatory interview management must inform the union representative of the subject of the interrogation. The representative must also be allowed to speak privately with the employee before the interview. During the questioning, the representative can interrupt to clarify a question or to object to confusing or intimidating tactics.
While the interview is in progress the representative can not tell the employee what to say but he may advise them on how to answer a question. At the end of the interview the union representative can add information to support the employee's case.
Helpful References on Weingarten Meetings
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An exclusive representative shall be given the opportunity to be represented at any examination of an employee by a representative of the agency in connection with an investigation if the employee reasonably believes the examination may result in disciplinary action and the employee requests representation. 5 USC 7114(a)(2)(B).
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Upon receiving a request for representation during an investigative interview that an employee reasonably believes could result in discipline, the agency has 3 choices: 1) grant the request; 2) discontinue the questioning; or 3) offer the employee the choice of continuing without a union representative present or foregoing the benefit of continuing the interview. Metropolitan Correctional Center, New York, 27 FLRA 874, 87 FLRR 1-1303.
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Each agency must annually inform its employees of their rights to representation during investigative interviews. 5 USC 7114(a)(3).
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The term "examination" is synonymous with investigative interview. BATF v. FLRA, 835 F.2d 1446 (D.C. Cir. 1987), 88 FLRR 1-8005.
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The right to union representation includes both criminal and non-criminal investigations. IRS, Jacksonville District, 23 FLRA 876, 86 FLRR 1-1831.
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In order for an interview to qualify as an examination in connection with an investigation, it is neither necessary for the employee to be in custody or to be required to attend the interview. AFGE v. FLRA, 837 F.2d 495 (D.C. Cir. 1988), 88 FLRR 1-8011, VA Medical Center, Jackson, MS, 48 FLRA 787, 93 FLRR 1-1266.
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To qualify as an examination for the purposes of the Weingarten right and interview does not have to occur on duty time. IRS, Los Angeles District, 15 FLRA 626, 84 FLRR 1-1615.
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Questioning conducted in a written format may still qualify as an examination for Weingarten purposes. Border Patrol, Del Rio, TX, 46 FLRA 363, 92 FLRR 1-1347.
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The determination of whether a belief that discipline could result was reasonable under the circumstances must be made from the perspective of the employee, rather than the intentions of the agency representatives. VA Medical Center, Hampton, 51 FLRA 1741, 96 FLRR 1-1086.
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An employee does not have to be the direct or current target of an investigative interview in order to harbor a reasonable fear, or to invoke the Weingarten right. IRS v FLRA, 671 F.2d 560 (D.C. Cir. 1982), 82 FLRR 1-8028.
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An employee's fear of discipline may be removed upon delivery of assurances that no discipline will result, if the employee knows that the officials making such assurances are empowered to make good on them. Norfolk Naval Base, 14 FLRA 731, 84 FLRR 1-1473, and FLRA v Dept. of Justice, 779 F.2d 719 (D.C. Cir. 1985), 85 FLRR 1-8034.
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An employee may invoke the right to a union representative at any point during an investigative interview. Bureau of Prisons, 55 FLRA 64, 99 FLRR 1-1048.
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A request for representation does not have to be in a specific format or use any particular words. Border Patrol, Washington, D.C., 41 FLRA 154, 91 FLRR 1-1295.
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A request for representation does not have to be repeated in order to remain in effect. Norfolk Naval Shipyard, 14 FLRA 82, 84 FLRR 1-1395.
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An employee may waive the right to a representative after requesting one, but the waiver must be clear and unmistakable. Mine Safety and Health Administration, 35 FLRA 790, 90 FLRR 1-1280.
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An attempt to coerce an employee to forego union representation during an investigative interview constitutes a ULP. Border Patrol, El Paso, 42 FLRA 834, 91 FLRR 1-1449.
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The union is entitled to designate which representative will attend an investigative interview. FDA, Newark, 47 FLRA 535, 93 FLRR 1-1100.
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The agency may be able to disallow the union's choice of representative in certain special circumstances; e.g., situations in which the proposed representative is also a target of the investigation. Bureau of Prisons, 54 FLRA 1502, 98 FLRR 1-1208.
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The agency is not required to unreasonably delay an investigation in order to accommodate the union's or employee's request for a specific individual to serve as the union representative. INS, New York District Office, 46 FLRA 1210, 93 FLRR 1-1016.
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The union representative in attendance at an investigative interview is entitled to take an active role. NASA, 50 FLRA 601, 95 FLRR 1-1068.
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An active role for a union representative includes the right to ask questions, assist in producing relevant information, and consulting with the employee being interviewed. VA Medical Center, Jackson, 48 FLRA 787, 93 FLRR 1-1266.
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A union representative is not entitled, however, to disrupt an investigation or to provide answers for the employee being questioned. Norfolk Naval Shipyard, 9 FLRA 458, 82 FLRR 1-1651, FAA, St. Louis, 6 FLRA 678, 81 FLRR 1-1223, and IRS, Fresno, 7 FLRA 371, 81 FLRR 1-1288.
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A union representative is not entitled to insist on taping an investigative interview. INS, San Diego, 13 FLRA 591, 84 FLRR 1-1359.
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If a union representative engages in misconduct during an investigative interview, the agency may not take action against the employee absent misconduct on the employee's part. INS, San Diego,13 FLRA 591, 84 FLRR 1-1359.
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Statements made by an employee to a union representative during an investigation are protected from disclosure. Customs Service, 38 FLRA 1300, 91 FLRR 1-1003.
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The agency is not required to reveal its case against an employee to a designated union representative during the conduct of an investigation. FAA, New England Region, 35 FLRA 645, 90 FLRR 1-1269.
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A performance evaluation does not constitute an investigative interview. Hanscom AFB, 45 FLRA 484, 92 FLRR 1-1218.
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A counseling session does not constitute an investigative interview. IRS, 8 FLRA 324, 82 FLRR 1-1448.
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A meeting held for the purpose of warning an employee against acts of misconduct does not constitute an investigative interview. IRS, 15 FLRA 360, 84 FLRR 1-1560.
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A meeting held to convey a decision already reached does not constitute an investigative interview. Wright-Patterson AFB, 9 FLRA 871, 82 FLRR 1-1623.
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If discipline resulted from a situation in which an agency improperly denied an employee union representation during an investigative interview, the remedy for a resulting ULP finding needs to go beyond a posting and a cease and desist order. In this case, the FLRA ordered the agency to repeat the investigative interview, upon request of the union and the employee, and to afford the grievant union representation. Thereafter, a subsequent determination of whether discipline was appropriate, based on the results of the new interview, could be made. Then, depending on the outcome, the agency was to take whatever actions may be necessary to make the employee whole. Bureau of Prisons, Safford, AZ, 35 FLRA 431, 90 FLRR 1-1252 |
