Federation of Government Employees
Whiteman Air Force Base, Missouri
Formal Discussions/Meetings IG Investigations Guidance FLRA Guidance on Meetings/Investigations
Under the Weingarten, an employee has the right to union representation when:
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:
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.
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."
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:
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.