Item #2, Staff Entitled to a Union Representative. (Weingarten Rights)

Title 5 USC Section 7114 (A)(2)(B) states:

Under this section a federal employee is entitled to union representation only if all of the elements in that

section have been satisfied. Those elements are:

1. There must be an “examination” of an employee in the bargaining unit.

2. The examination must be conducted by a “representative of the agency.”

3. The employee must have a reasonable belief that the examination might result in discipline.

4. The employee must make a valid request for union representation.

1. Examination:

A. Under the statute the right to representation extends only to examinations that are conducted "in

connection with an investigation." In 23 FLRA 876 the FLRA held that the term "examination"

encompasses both criminal and noncriminal investigatory interviews.

B. The employee does not have to be in custody for an investigatory interview to be an "examination"

according to the D.C. Circuit Court in AFGE, Local 1941 v. FLRA. 837 F.2d 495.

C. Nor is the "examination" limited to investigatory interviews that the employee is required to attend. See

48 FLRA 787.

D. An investigatory interview doe not have to occur during an employee's duty time to constitute an

"examination." Whether the interview is on or off-duty does not alter the character of the examination. See

15 FLRA 626.

E. An investigative interview does not have to be confrontational in order to amount to an "examination."

In fact, the representational right extends even to examinations that are conducted entirely in writing

according to 46 FLRA 363.

2. Representative of the Agency:

A. The U.S. Supreme Court in NASA v. FLRA, 119 S. Ct. 1979 held that representational rights extend to

OIG investigations. The Court said that the representational interests of federal employees are equally

strong whether the agency or the agency's OIG is conducting the examination.

B. In 15 FLRA 626 the FLRA held that a fellow bargaining unit member is a representative of the agency

if that person reports their findings to a management official conducting the disciplinary investigation.

C. In 54 FLRA 716 the FLRA held that an agency attorney and an attorney and an attorney for the Judge

Advocate General's Office are agency representatives.

D. In 36 FLRA 748 the FLRA ruled that criminal investigators employed by the agency (OIA & SIA) are

agency representatives.

E. In 41 FLRA 1370 the FLRA rejected the notion that an agency representative must be a supervisor.

F. In 39 FLRA 298 the FLRA ruled that agencies are responsible for the conduct of their representatives

regardless of the organizational location of the representative.

3. Reasonable Belief of Discipline:

A. In IRS v. FLRA, 671 F.2d 560 the court of appeals ruled that an employee does not have to be the

subject of an investigation in order to have a reasonable belief that an examination may result in

discipline. This is because investigations can often lead to places that the agency doesn't anticipate.

B. In FLRA v. DOJ, 779 F.2d 719 the D.C. Circuit Court of Appeals ruled on grants of immunity by

investigators. In this case the court observed that immunity had never before been granted at the

installation, that there was no written policy on grants of immunity, that the chief disciplinary officer at the

station denied the authority of the two investigators to grant immunity, and that the investigators were

unable to cite adequate authority for their actions. Given these procedural irregularities, the employee

could reasonably fear that discipline might result from the examination. The court said that the important

issue was not whether the grant of immunity was valid, but rather how the grant of immunity could be

perceived by a reasonable employee.

C. In 39 FLRA 717 the FLRA looked at the timing and context of an examination to determine whether an

employee reasonably feared discipline. The agency argued that the employee had no statutory right to a

union representative at a counseling session. However, the FLRA sustained the arbitrator’s finding that

the employee had a reasonable fear that discipline would have resulted from the proposed meeting with

his supervisor. The employee had just left a meeting in which he discussed a grievance that he had filed

against the supervisor for allegedly abusive treatment. The supervisor told him that he wanted him in his

office “one-on-one.”

The FLRA concluded that under these circumstances, the employee had a reasonable apprehension that

discipline would result from the meeting. Therefore, the employee’s refusal to meet with the supervisor

without a union representative was protected by the statute. The FLRA seemed to ignore the important

requirement of the statute in this case—whether the proposed examination related to an investigation.

The FLRA’s finding of a Weingarten violation appeared to rest solely on its finding that the employee

reasonably feared discipline.

4. Request For Representation:

A. 5 USC 7114 (A)(2)(B) requires all federal agencies to inform their employees of their Weingarten

Rights on an annual basis. They are not required to do so immediately before conducting an examination.

So the right to a union representative only arises if the employee asks for it.

B. The U.S. Supreme Court in NLRB v. J. Weingarten, 420 U.S. 251 held that once an employee makes a

valid request for a union representative, the burden shifts to the employer who can: 1. Grant the request;

2. Discontinue the interview; 3. Offer the employee the choice between continuing the interview without a

representative or having no interview and foregoing benefits that might be derived from one.

C. In 35 FLRA 1069 the FLRA said that the employee’s request does not have to take a specific form, but

it must be sufficient to put the agency on notice of the employee’s desire for a representative.

D. “I would like to speak to a lawyer or somebody to advise me,” is sufficient to invoke an employee’s

Weingarten Rights according to 35 FLRA 1069.

E. “Maybe I need to see a union rep,” is sufficient to trigger the Weingarten Right according to 27 FLRA

874 and 29 FLRA 482.

F. In 46 FLRA 363 the FLRA found that an employee’s request for a union representative also constituted

a request for a representative for two other employees who were also under examination. Here three

Border Patrol employees interrupted their preparation of written responses to the examination and walked

into a supervisor’s office. One employee, acting as a spokesman for the other two, told the supervisor that

they did not agree with his interpretation of the Weingarten Rights. The spokesman also asked if their

written responses could be used against them. When the supervisor responded in the affirmative, the

spokesman said: “I am officially requesting union representation.” The FLRA concluded that, in these

circumstances, the supervisor should have understood that the spokesman was requesting union

representation for all three subjects of the examination.

G. In 14 FLRA 82 an employee requested union representation several times while she and her

immediate supervisor were on their way to an examination with a third-level supervisor. The immediate

supervisor ignored the requests, and the two supervisors conducted the examination without a union

representative. The FLRA said that even though she never requested a union representative in the

presence of the third-level supervisor, her repeated requests prior to the examination were sufficient to

invoke the right to union representation.

H. In 5 FLRA 473 the FLRA ruled that an employee doesn’t have to make repeated requests for union

representation if he believes that another request would be futile.

I. In 55 FLRA 388 the FLRA found that if the agency (BOP in this case) doesn’t respond to a valid request

for union representation and simply proceeds with the examination, the agency “preemptively” denied the

employee the right to union representation. This is true even if the employee has declined union

representation at previous examinations