WFMO Representation Rights 2006 Memo

Weingarten Rights
An Employee's Right to Union Representation

Supervisors and managers have every right to communicate with their employees, but when it comes to questioning which could result in discipline, the bargaining unit employee has rights as well.

Weingarten is a short-hand term used to refer to the right of bargaining unit employees to have a union representative present during "investigative interviews" that employees believe could lead to disciplinary action if such representation is requested by the bargaining unit 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).

This right applies only in investigative interviews, not in regular or routine discussions about work performance or job assignments or other formal discussions. Formal discussions are meetings between representatives of agency management and bargaining unit officials in which the topic(s) under discussion include: "grievances," "personnel policies or practices," or "general conditions of employment." Unions are to be notified in advance of such meetings and afforded an opportunity to attend and participate in them.

Key Points To Remember

• An exclusive representative shall be given the opportunity to be present at any examination of a bargaining unit employee in connection with an investigation if the employee reasonably believes the examination may result in disciplinary action and the bargaining unit employee requests representation. The agency is only required to provide a union representative upon the bargaining unit employee's request for such union representation.
• Upon receiving a request for representation during an investigative interview that a bargaining unit employee reasonably believes could result in discipline, the agency has three choices: 1) grant the request; 2) discontinue the questioning; or 3) offer the bargaining unit employee the choice of continuing without a union representative present or foregoing the benefit of continuing the interview.
• Each agency must annually inform its bargaining unit employees of their rights to representation during investigative interviews.
• The term "examination" is synonymous with an investigative interview.
• The right to union representation includes both criminal and non-criminal investigations.
• To qualify as an examination for the purposes of the Weingarten right an interview does not have to occur on duty time.
• The determination of whether a belief that discipline could result was reasonable under the circumstances must be made from the perspective of the bargaining unit employee, rather than the intentions of the agency representatives.
• A bargaining unit 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.
• A bargaining unit employee's fear of discipline may be removed upon delivery of assurances that no discipline will result, if the bargaining unit employee knows that the officials making such assurances are empowered to make good on them.
• A bargaining unit employee may invoke the right to a union representative at any point during an investigative interview.
• A request for representation does not have to be in a specific format or use any particular words.
• A request for representation does not have to be repeated in order to remain in effect.
• A bargaining unit employee may waive the right to a representative after requesting one, but the waiver must be clear and unmistakable.
• Any attempt to coerce a bargaining unit employee to forego union representation during an investigative interview constitutes an unfair labor practice.
• The union is entitled to designate which representative will attend an investigative interview as long as there is no undue delay.
• The agency may be able to disallow the union's choice of representative in certain special circumstances, for example, situations in which the proposed representative is also a target of the investigation.
• 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.
• The union representative in attendance at an investigative interview is entitled to take an active role.
• 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.
• A union representative is not entitled, however, to disrupt an investigation or to provide answers for the employee being questioned.
• A union representative is not entitled to insist on taping an investigative interview.
• 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.
• The agency is not required to reveal its case against an employee to a designated union representative during the conduct of an investigation.
• A performance meeting or evaluation does not constitute an investigative interview.
• A counseling session does not constitute an investigative interview.
• A meeting held for the purpose of warning an employee against acts of misconduct does not constitute an investigative interview.
• A meeting held to convey a decision already reached does not constitute an investigative interview.

Contact your servicing WFM Office for more information.