Weingarten Rights
EMPLOYEE’S RIGHT TO UNION REPRESENTATION
The right of employees to have union representation at investigatory interviews was 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 emplovee 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.
AFGE GUIDE TO OFFICE OF INSPECTOR GENERAL INTERVIEWS WARNING: This guide is intended to provide general information on Office of Inspector General [OIG] interviews. This document is not a substitute for individualized legal advice based upon an employee’s specific circumstances. Consult with legal counsel to determine whether there has been a change in the law since this document was created. The OIG’s mission is to seek out and eliminate fraud, waste, and abuse within your agency. In order to carry out its mission, the OIG has the statutory authority, under 5 U.S.C.A. App. 3 §6, to: A. Interview employees under oath; B. Review agency documents; C. Subpoena individuals to provide the OIG with documents; and D. Inform the Attorney General and local United States Attorney of any potential criminal violations. The OIG does not have the legal authority to: A. Place employees under arrest; B. Physically threaten or intimidate employees; or C. Order employees to appear for interviews or discipline employees if they refuse to appear or cooperate. [This is a technicality easily cured by the OIG by requesting any management official to direct employees to appear or by recommending to management that employees be disciplined.]The OIG has a job to do and will use any legal means to achieve its statutory mission of eliminating fraud, waste, and abuse within your agency. Individual employees, however, may become "casualties" of overly- aggressive OIG investigations. It is your decision as to the level of cooperation you choose to give OIG investigators, but remember to use extreme caution when talking to OIG investigators. For instance, do not let yourself be drawn into an extended conversation with the OIG investigator or any management official at the interview. Keep all of your answers to OIG questions short, simple, truthful, and responsive. As the Supreme Court made clear in LaChance v. Erickson, 118 S.Ct. 753 (1998), you may be disciplined if you deny alleged misconduct and the OIG or agency later learns that your denial was a lie. If called in for an OIG interview, you must attend the interview [See sec. 3 regarding employee request to ask if not compelled through discipline to answer questions, which if confirmed, would then permit employee to leave interview] or face possible discipline. However, as a federal government employee, you have the following rights if called in for an interview with the OIG:
1. The right to have a union representative present during questioning. 5 U.S.C. §7114(a)(2)(B) gives bargaining unit employees the right to have a union representative present during agency investigations if "the employee reasonably believes that the examination may result in disciplinary action against the employee" and if they so request. Go to your shop steward before the OIG interview to arrange for union representation. Then, with your union representative present, you must request union representation at the OIG interview in order to properly invoke your rights.
If the OIG refuses your right to a union representative, you cannot refuse to continue the interview without placing yourself in jeopardy of possible discipline for refusing to be interviewed. You should ask your union representative to consider filing an unfair labor practice charge if you are denied the right to union representation. The employer [including the OIG] always retains the right to: 1) grant the employee’s request for representation, (2) discontinue the interview or 3) offer the employee a choice to continue the interview without representation or have no interview. Moreover, an employee can be compelled to participate in an examination without a representative if they are give written administrative immunity [in essence, then no reasonable belief of discipline]. 2. The right to have an attorney present during questioning. 5 U.S.C. §555(b) provides that "A person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative." You therefore have the right to have an attorney present at an OIG interview if you so desire. As this right is an individual right, and not a union right, it is your responsibility to get an attorney to your OIG interview. Once again, you may insist on this right to an attorney and request that the interview be postponed until your attorney can be present. Make sure such requests are made ON THE RECORD. 3. The right to ask questions during the interview. At the very beginning of the OIG interview, you should ask the following questions: a. "What is the matter under investigation?" i."Do you think I was involved in the matter you are investigating?" ii. "Am I the subject or focus of your investigation?" b. "Am I free to refuse to answer questions and leave this interview without risk of discipline by my agency?" i. If "yes," then it is your option to quickly, but politely, leave the interrogation without answering any questions. ii. If "no," then ask "Am I under arrest?" A. If the answer to this question is "yes," then ask to see, in writing, the legal authority that keeps you at the interrogation. At this time you are entitled to “Miranda warnings.” B. If the answer to this question is "no," but you are not free to go, or face discipline if you leave, you may state: "I am invoking my Fifth Amendment right to silence."
The OIG had maintained that they are not a “representative of the agency” with regard to affording union representation. In a very significant case, AFGE argued successfully before the Supreme Court that the OIG acts as a representative of the agency, when examining its employees, finding that “OIG investigators are employed by, act on behalf of, and operate for the benefit of their [employing Agency].” NASA v. FLRA and AFGE, 119 S. Ct. 1979 (1999). The Justice Department recently attempted to limit the Supreme Court’s holding, arguing that the right to union representation does not apply when the OIG investigator acts solely as a criminal investigator interviewing to ascertain whether the employee has engaged in criminal conduct. AFGE vehemently opposed this interpretation and maintained that the Supreme Court has conclusively resolved this issue with respect to all OIG interviews. The U.S. Court of Appeals for the D.C. Circuit again agreed with our position in U.S. Dept. of Justice v. FLRA and AFGE, D.C. Cir. No. 00-1433 (decided Oct. 9, 2001), flatly rejecting Justice’s attempt to further limit the right to union representative in IG examinations. If union representation is denied for this or any reason, attempt to get, ON THE RECORD, the following statements [if the OIG is recording the interview, make sure the tape recorder is running when you exercise all of your rights]: a. "I request a union rep." b. "My union rep is here (or is just outside this room)" c. "May I call in my union rep?" [If the OIG continues to deny you your union rep.] d. "After repeated requests, you have denied me my statutory right to a union rep." e. "I am continuing this interview but have not been given my right to have my union rep. present and do not waive any right I may have to union representation." 4. The right to remain silent. The Fifth Amendment right should be invoked only after in-depth discussion with your attorney who can explain all the legal nuances involved. The Fifth Amendment of the United States Constitution gives you the right to remain silent if you believe that your statements may tend to incriminate you. As a federal employee, the right to remain silent, if properly exercised, may provide you with important criminal law protections, but it may also expose you to significant administrative adverse actions. If, after invoking your Fifth Amendment right to silence you are given written assurance [properly authorized by a U.S. Attorney in that jurisdiction] that your answers can not be used against you criminally - a protection called "criminal use immunity," - and you are ordered to speak under threat of discipline, then you must answer all questions asked or you can be disciplined. At this point, one of two things may happen: a. If you refuse to speak, the agency may discipline you. b. If you speak, whatever you say, and the ‘fruits’ of your replies [i.e. additional investigative informational obtained only from your statement] should not be used against you in any criminal prosecution, but the agency may still discipline you for what you say.
Get ON THE RECORD that the agency ordered you to talk under threat of discipline. If possible, also get a written statement from your agency and the OIG acknowledging that you are being compelled to speak by your agency and that your answers cannot be used in any criminal charges against you. After the interview, inform your Local President or Shop Steward that you were interviewed by the OIG. If you are confronted by abusive OIG investigators who threaten or use physical force or intimidation, such as brandishing a weapon or handcuffs, at any time before or during the interview, you should request that your local inform your AFGE National Vice President and the AFGE General Counsel of these OIG actions and the general subject of the interrogation so that further action can be taken to enjoin such abuses. Remember, if you are frightened or confused, you may demand your right to have an attorney present and a reasonable postponement to obtain counsel. 5. Union Representative Entitled to “Active Role” in Representation The FLRA has interpreted the Weingarten right to include right to be informed in advance of the general subject of the examination so that employee and union representative may consult before questioning; right of union representative to make comments concerning form of questions or statements and clarify facts or elicit favorable facts; and an opportunity for a private conference between an employee and union representative.Frequently Asked Questions: Collective Bargaining
Has President Bush canceled union-management partnerships?
No. President Bush revoked Executive Order 12871, which ordered agencies to operate in partnership with their unions, but he clearly desires that successful partnerships continue. One good result of President Bush’s action is that it eliminates the demoralizing effect of management’s systematic, insubordinate refusal to comply with E.O. 12871. What is collective bargaining? Collective bargaining is the preferred, statutorily established, method for employees to participate in making the decisions that affect their working conditions. It is the most effective form of pre-decisional involvement that there can be. In collective bargaining there is an equal partnership between management and the employees, speaking through their union representatives, at least as to the matters the law requires be bargained. What can unions in the federal government bargain over? Agencies have to bargain with unions over all matters affecting working conditions, with certain exceptions. The exceptions include: matters going to the heart of managing the enterprise, such as establishing the basic budget; matters already set by law or government-wide regulations; and classification matters. It is important to remember, however, that AFGE represents its members on a whole range of subjects, such as GS pay increases, through lobbying. Thus, to say that an issue is outside the scope of bargaining does not mean the union can’t effectively deal with it on behalf of its members.
How do "management rights" affect our right to bargain? Because of its deep distrust of the competence of agency managers, Congress has restricted their right to bargain over many subjects which private companies bargain on all the time. Ironically, these restrictions are labeled "management rights" in the collective bargaining law. Unfortunately, by definition, this restriction on management reduces the breadth of our bargaining with those managers. You should note, however, that competent, self-assured managers are willing to successfully deal with the union to solve problems, regardless of so-called management rights.
How can AFGE bargain effectively when it is against the law to strike? Although our right to strike is denied, we retain most of the other weapons successfully use by private sector unions to enforce their demands. In fact, private sector unions are coming to rely on these non-strike tools more and more, as they are often both more effective and less costly than strikes are.
What is the difference between bargaining, negotiating, and consultation? Legally, there is no difference in the meaning of these terms. However, often contracts will define consultation as management merely listening to the union’s concerns and taking them into account. There is no reason to have that sort of contract provision.
What is the difference between a CBA an MOU and an MOA? Legally, all three of these acronyms mean the same thing. · CBA = Collective Bargaining Agreement · MOU = Memorandum of Understanding · MOA = Memorandum of Agreement All three of these are written agreements, or written notes of mutual understandings, between management and the union speaking collectively on behalf of the employees. Typically, however, collective bargaining agreement is used to describe the master contract, the document that covers a broad range of working conditions, and goes for two or three years without change. Then it is re-negotiated. The so-called memos usually cover single, less-important, subjects. They are often used to settle grievances. They don’t have any expiration dates; that means that they remain in effect until the parties agree otherwise.
Can management avoid bargaining with us over policies and decisions that were made at a higher level of the agency? No. If management has issued a policy at a higher level than the level of recognition, it the agency’s obligation to have someone at the bargaining table authorized to negotiate changes in that policy. Either the authority to bargain on that subject must be delegated to local management or, if they cannot be trusted, a higher level manager must be sent to the negotiating table.
What if the management negotiator has to check with higher levels before discussing proposals with us? By law, the agency has to be represented in bargaining by "duly authorized representatives prepared to discuss and negotiate on any condition of employment," "with a sincere resolve to reach a collective bargaining agreement." Before you even sit down at the table, you should send management a letter asking for copies of the delegations of authority from the agency head (e.g., for any activity in DOD, that is the Secretary of Defense) to the management chief negotiator. Of course, the delegation need not be direct; again, for example, the secretary of defense typically delegates personnel authority to the heads of the major commands, who in turn delegate it through the chain of command as far down as necessary.
What’s a negotiability appeal? When and how do we file one? Sometimes when management refuses to bargain in good faith, it offers the excuse that the duty to bargain does not extend to the particular union proposal. A ’negotiability’ appeal is the union’s request to the Federal Labor Relations Authority to determine that management is wrong and to order management to bargain over the particular proposal. The form for filing an appeal can be downloaded from www.flra.gov <http://www.flra.gov/>. A negotiability appeal must be filed within 15 days of management making a written allegation that the duty to bargain does not extend to the union proposal. This timetable begins only when there is a written statement; management simply saying orally that the proposal is non-negotiable does not trigger any deadline.
Does management have the right to refuse to bargain as long as the negotiability appeal process continues? Yes and no. The theoretical ability to have the Federal Labor Relations Authority order management to bargain is unavailable while the appeal is pending. However, most refusals to bargain are based on the so-called management rights clause or on agency-wide policies. You should put out a leaflet with the text of the union proposal and the comment, "Management says it doesn’t have the authority to even discuss this idea."
What is the "covered by" doctrine, and how do we get around it? The Federal Labor Relations Authority presumes that the usual collective bargaining agreement contains an unwritten grant by the union to management of the right to act unilaterally for the life of the contract on any matter which might have been addressed in the contract but was not. The solution is to have the contract expressly state what bargaining rights have and have not been waived for the term of the contract. This is discussed in the AFGE Collective Bargaining Manual.
What is an unfair labor practice? "Unfair labor practice" is a technical term under the labor relations law. For practical purposes, the two most common kinds of unfair labor practices are (a) management’s refusal to bargain in good faith, and (b) management’s discrimination against employees for exercising their rights under the labor law.
What are the remedies for unfair labor practices? Almost always, the only remedy ordered is for management to post a notice promising not to break the law the same way in the future.
How many times, or how many hours, do we have to discuss a subject before it’s at impasse? An impasse is simply the status during negotiation over a subject when (a) there is no agreement and (b) there are no fresh ideas for resolving the disagreement. There is an impasse when: · the union has submitted a proposal and management has said no, without submitting a counter-proposal; · management has submitted a proposal (or counter-proposal) and the union says no without providing an additional proposal of its own. Until one party or the other changes its position, it is a waste of time to continue to discuss the subject.
How can we win any cases at the Impasses Panel, given its current makeup? We will win cases where we have evidence that the change we propose is desired by the members, would provide a concrete benefit to them, and would not have a really detrimental effect on the agency. As in the past, when the panel was dominated by more sympathetic people, we will lose cases where we don’t present persuasive evidence.
Dealing with IDRC
Did you know that before you can file a grievance or an EEO case you have to first go through the Informal Dispute Resolution Center (IDR Center)? Did you also know that you have 45 days from the occurrence of the incident or of when you first became aware of the incident, to contact them? If you go beyond the 45 days, the chances are very great that your case would be dismissed for failing to have filed in a timely manner. Did you know that you are allowed to have a representative when you go through the IDR Center Process and that representative can be a union shop steward? You must initiate the contact with the IDRC, but you are permitted to have Union representation before and during that initial contact. The IDR Center is the place where your case gets framed as either an EEO case or a grievance. The issues that can be included in your EEO case or grievance are also framed at the IDR Center. The IDRC mediators are supposed to be unbiased while reviewing cases and seeking a resolution. Your shop steward is looking to protect your interests. When you go to the IDR Center you are asked to fill out an intake form and that is what the mediator uses to frame your case. Sometimes the mediators ask you to fill it out on the fly at the IDR Center. Union representatives will have the forms mailed electronically to them by the IDR Center, and then the client fills out the form. Your Union rep will assist you in filling out the intake form. Then the client submits the form to the IDR Center. Your stewards have ideas they can contribute to help resolve problems that the mediator might not think of. Sometimes, the mediators need to be pushed to do things in our client’s interests. Your rep can push the IDR Center as needed. It is in your best interest to get the union involved before you visit the IDR Center so that we have the best chance of getting you the remedy you should have before management gets locked into rigid positions, which often happens when problems drag on without outside intervention. 1) Consult your union representative as soon as you become aware of a problem; 2) You are encouraged to have union representation when you go through the IDR process.
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