American Federation of Government Employees
Whiteman Air Force Base, Missouri

     Weingarten Rights     


Formal Discussions/Meetings      IG Investigations Guidance      FLRA Guidance on Meetings/Investigations

All employees in the bargaining unit have the right to be represented in closed door meetings with management officials. The presence of the union representative prevents supervisors from coercing employees into confessing to alleged wrong doings and/or accepting undue or harsh remedial actions. The right of an employee to have a union representative present during such questioning comes from a Supreme Court Case decided in 1975. That case, NLRB vs. Weingarten, set out certain rules for employees subject to investigatory interviews on the job. The Weingarten Rule applies to federal and D.C. employees and was adopted in the Civil Service Reform Act of 1978. US Code Title 5 Section 7114
 

Be Aware the Labor Management Agreement for AFGE Local 2361 Article 25 Section 2 changes some of the interpretations of the statute, has the full effect of law and an overriding factor in the generalized nature of this web page:

"A Union representative will be allowed to be present during any examination, interview, or questioning of the Employee by a representative of the Air Force (including local Security Forces) if the Employee requests representation, and the Employee reasonably believes disciplinary action may be taken against them.  The Management Official will forego further discussion until the representative has the opportunity to be present, if representation has been requested by the Employee)".

Under the Weingarten, an employee has the right to union representation when:

a. he/she is subject to an investigatory interview. (Investigatory interviews happen when a supervisor, other management official, or representative of the employer questions an employee to obtain information which could be used as a basis for discipline or asks an employee to defend her or his conduct). And;

b. he/she has a reasonable belief that discipline or other adverse consequences may result from what he/she says in the interview.

When those conditions are met, the employee has the right to request union representation.
 

Section 7114(a)(2)(B) of the Federal Labor-Management Relations Statute (henceforth "the Statute") gives federal employees who are included within a bargaining unit the right to union representation during an investigative interview that they reasonably fear could lead to disciplinary action.

This provision, commonly referred to as the "Weingarten" right in recognition of the private sector Supreme Court decision which it closely mimics, frequently comes into play in the federal workplace.

Specifically, it provides that an exclusive representative will be given the opportunity to be present at:

... any examination of an employee in the unit by a representative of the agency in connection with an investigation if--

(i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and

(ii) the employee requests representation.

Although this seems fairly straightforward, a substantial number of questions have arisen in connection with this right since the Statute was enacted.

The purpose of this module is to acquaint you with the essential principles involved in the concept of Weingarten meetings, and to provide an up-to-date summary of the key interpretations placed on this provision by the FLRA and the courts.

Elements of Weingarten Meetings

There are four essential ingredients involved in creating a situation in which the Weingarten right comes into play. Each of them is discussed below.

Participation Requirements

The right to representation during an investigative interview is one that is available only to employees who are included within a bargaining unit. Consequently, it is not a right that supervisors, managers, or other employees who are simply not in a bargaining unit for some other reason, can exercise.

To meet the minimum requirements set up in the Statute, therefore, a discussion must involve at least one bargaining unit employee and at least one "representative of management."

The term "representative of management" has been interpreted broadly to include supervisors, managers, HR practitioners, and investigative personnel employed by the agency--including investigators assigned to an agency's Office of the Inspector General.

Nor is an individual's title necessarily determinative of whether he/she will qualify as a "representative of management" for purposes of the Weingarten provision. For example, in at least one case the FLRA ruled that a co-worker met the definition while conducting a tax audit with disciplinary potential at management's behest.

It would appear that a useful rule of thumb might be to view any individual who is gathering information from a bargaining unit employee at the direction of, or for some level of management as meeting the "representative of management" requirement for Weingarten purposes.

Examination in Connection with an Investigation

After careful review of the legislative history of the Weingarten provision, the D.C. Circuit came to the conclusion that the somewhat awkward term "examination in connection with an investigation" is synonymous with "investigative interview."

Or, to put it in everyday English, it means asking questions that, depending upon the answers given, could lead to disciplinary action.

Whichever term you prefer, it boils down to the fact that a wide array of inquisitive activities qualify as "examinations" under this provision of the Statute.

Both criminal and non-criminal (i.e., administrative) investigations qualify as "examinations,"

Nor does the fact that the information is sought from an employee in written form exempt the inquiry from qualifying as an "examination."

Non-Examinations

Not all discussions are investigative, however. In recognition of this fact the FLRA has ruled that the following common types of discussions do not in and of itself trigger the Weingarten right:

  • Performance evaluations--even if negative.

  • Counseling or verbal warning sessions.

  • Discussion of a last-chance agreement.

  • Announcement of a decision already made, such as a disciplinary action.

A useful rule of thumb for distinguishing those discussions that qualify as "examinations" from those that don't is to ask  whether the meeting/discussion involves the solicitation of information from the employee, or simply the delivery of it to him/her. Therefore, managers must be mindful that performance feedbacks/evaluations, counseling/verbal warning sessions and disciplinary announcements if not handled properly could possibly end up resulting in the incorporation of the right.     

Fear of Discipline

The Weingarten provision does not grant employees the right to have a union representative present anytime they like. Rather, it limits the right to instances in which the employee could reasonably fear discipline might result from the discussion.

In determining whether a professed fear of possible discipline was reasonable, the Authority has done a credible job of applying the "reasonable person" test to each situation.

In doing so, it has focused on the totality of the circumstances from the perspective of the employee--not based upon the intentions or viewpoint of the management official involved in the situation.

In other words, it doesn't matter that a supervisor who is asking pointed questions of an employee has no intention--at least at that point--of imposing discipline. The Weingarten right is triggered by the employee's perception, not the questioner's intentions. After all, one can't expect employees to be mind readers.

Nor does the employee lose the right to representation merely because the interrogator states that the employee is not the focus of the investigation. If an employee reasonably fears that his answers will implicate him in a disciplinable offense, the right to representation upon request is still there.

But what if the employee is assured that he/she will not suffer discipline? Is a fear of discipline still reasonable then? The answer seems to be "It all depends."

Primarily it appears to depend on whether the employee has reason to believe the person providing an assurance of no discipline has the authority to do so.

The D.C. Circuit Court has ruled that an assurance of immunity by two investigators who were not in the direct chain of command over an employee could not provide an assurance that the employee was obliged to accept. Consequently, his fear of discipline and insistence on a representative was protected.

Request for Representation

The FLRA has made it clear that employees do not have to utter a precise set of magic words to indicate their desire for representation. Indeed, they don't even have to mention the word "union" anywhere in the request. Just about any indication of an interest in having help during the interview seems sufficient.

In one case, an employee's announcement that "I would like to speak to a lawyer or somebody to advise me" was sufficient to trigger the Weingarten right.

Similarly, the comment "Maybe I need to see a union rep" met the "request" requirement.

Nor does an employee have to repeat his/her request at various junctures in the investigation process to keep it active.

An employee can waive or withdraw a request for representation, though the waiver has to be clear and unmistakable.

Indeed, agency representatives can--rather gingerly--invite an employee to waive or withdraw a request for representation by offering a choice of either a) proceeding with the interview without a representative present, or b) foregoing the benefits of providing answers to the questions; i.e., not having the interview at all.

Agencies cannot, however, attempt to coerce an employee into proceeding without a union representative by moving beyond a simple offer of this choice.

Rights and Responsibilities

Employees do not have an absolute right under the Statute to have an investigative interview with a union representative present. Agencies may legitimately opt to skip an interview under those circumstances-- and doing so does not amount to coercion.

Once an agency does decide to proceed with a union representative present, however, an array of specific rights and responsibilities come into play.

  • The union, not the agency or the employee, has the right to determine which representative will attend the interview.

  • Although the agency is required to provide reasonable cooperation in conducting the interview, it is not obliged to postpone it unreasonably to meet the union's schedule. (However, for AFGE Local 2361 the Labor Agreement Article 25 Section 2: A Union representative will be allowed to be present during any examination, interview, or questioning of the Employee by a representative of the Air Force (including local Security Forces) if the Employee requests representation, and the Employee reasonably believes disciplinary action may be taken against them.  The Management Official will forego further discussion until the representative has the opportunity to be present, if representation has been requested by the Employee).

  • The agency can reject a particular representative under certain special circumstances; e.g., the rep is himself/herself to be questioned as part of the investigation.

  • The union representative is entitled to take an active role in the interview, but cannot answer questions for the employee or disrupt the proceedings, generally this means he/she can ask questions, make suggestions, and the like.

  • The union representative is also entitled to confer with the employee, though not necessarily in private or after every question.


Frequently Asked Questions

1. Does the Statute require agency representatives to advise employees of their Weingarten rights before asking questions?

No, though some labor agreements do.

2. Can an employee be entitled to have both a private attorney and a union representative present?

Yes, in some cases. For example, if the employee is being questioned in connection with a matter that could result in criminal charges, he/she would have the right to an attorney as well as the Weingarten right to a union representative. The union cannot be excluded merely because an attorney is also present.

3. Is the agency obligated to wait to conduct an interview until the union representative can show up?

Within reason, yes. However, since the employee is not entitled to his/her personal choice of a specific representative, the agency does not have to postpone an interview for an unreasonable length of time to accommodate the employee's preferences--particularly if other union representatives are available. (However, for AFGE Local 2361 the Labor Agreement Article 25 Section 2: A Union representative will be allowed to be present during any examination, interview, or questioning of the Employee by a representative of the Air Force (including local Security Forces) if the Employee requests representation, and the Employee reasonably believes disciplinary action may be taken against them.  The Management Official will forego further discussion until the representative has the opportunity to be present, if representation has been requested by the Employee).

4. Can the agency legitimately call off an investigative interview with an employee who insists on having a representative present?

Yes--though it must be careful to avoid doing so in a coercive manner; e.g., threatening that things will go worse for the employee for not "cooperating."

5. What are the agency's alternatives after an employee requests a representative?

Grant the request, drop the interview, or offer a choice of proceeding without a representative for foregoing the interview.

6. Can a union representative be required to reveal what an employee has said to him/her in the course of an investigative interview?

No, except in rare circumstances in which the agency can establish/substantiate an "overriding need" for the information.

7. What happens if the agency fails to comply with an employee's Weingarten right; i.e., what's the penalty?

Assuming a ULP is filed and the Agency is subsequently found guilty, the agency will generally face a cease and desist order,  accompanied by an agency head or subordinate posting, if no discipline was taken against the employee. If, however, there was discipline, retaliation or other results, the FLRA will usually order the discipline rescinded, possible other actions and the interview re-run in compliance with the law.