By Ann Boehm, October 18, 2022
Once again, I’m writing about the Weingarten union representation right. This time I want to emphasize something that may seem overly obvious: Stick to the law!
Let’s start with a refresher about the statutory language. The Weingarten right is established in 5 U.S.C. § 7114(a)(2)(B). To trigger the Weingarten right, there has to be an investigation by the agency. That typically means a misconduct investigation. If there’s no investigation occurring, you can pretty much stop there—no right to a union representative.
If there is an investigation, the next consideration is whether the representative of the agency is examining a bargaining unit employee, or to put it another way, asking questions. No questions, no right to representation.
If there is an investigation, and there is an examination of a bargaining unit employee by an agency representative, the employee still has to reasonably believe that disciplinary action against the employee could result from the examination in order for the employee to have a right to union representation in that meeting. No reasonable fear of disciplinary action, no right to union representation.
One big part of the statutory Weingarten right is this: The employee has to request a union representative. The agency representative has no statutory obligation to notify the employee of their right to representation (other than the agency’s an obligation to inform employees of the right annually). It’s up to the employee to seek the representation. No request for representation, no right to representation.
Here’s a problem I discovered during a recent training session. An attendee said, “Our attorneys strongly suggest we advise the employees of their Weingarten right.” Good heavens! Why in the world would that be a good idea? The statutory language makes it crystal clear that the agency representative does not have any such obligation.
Another way the agencies and unions go beyond the statutory language is by negotiating into the collective bargaining agreement an obligation on the agency to inform the employee of the Weingarten right before questioning an employee during an investigation. Good heavens! Why in the world would that be a good idea? Congress did not require it, so why agree to more than what Congress established in section 7114(a)(2)(B)?
There is really no practical reason to go beyond what the Statute says. In the worst-case scenario, if the agency proceeds with an interview without allowing the union representation, a typical unfair labor practice remedy would be to order a re-do of the interview with a union representative present (the “interview remedy”). The interview remedy may not even be necessary. A 2018 case from the FLRA indicates an interview remedy is not necessary if the Weingarten violation did not negatively impact on the outcome for the employee. U.S. Dep’t of Justice, FBP, FCI Englewood, 70 FLRA 372 (2018).
In FCI Englewood, the employee tested positive for marijuana on a random urinalysis drug test. The agency investigated his drug use, and a urinalysis retest confirmed the original results. When the agency interviewed the employee about the drug test, he requested a union representative. A union representative attended, but the agency investigator told the representative to stop asking questions. The employee then admitted to using marijuana. The agency removed the employee from his position, and the union filed a grievance challenging the removal. The arbitrator reduced the penalty to a 14-day suspension.
The union also filed an unfair labor practice charge, claiming violation of the Weingarten right based on the agency’s refusal to allow the union representative to participate actively. The General Counsel filed a ULP complaint. The Administrative Law Judge found the agency committed a ULP, and ordered an interview remedy. Id. at 373.
The agency challenged the ALJ’s interview remedy, claiming that it would be a duplication of effort and resources, and the FLRA agreed. The FLRA explained that the interview remedy would be appropriate if allowing the union representative’s participation would reasonably suggest no discipline would have been imposed. But in this case, “there is no dispute that some type of discipline was justified” because the employee tested positive for marijuana use. The FLRA set aside the interview remedy. Id.
The law provides enough protection for the employee. Agencies, you do not need to go beyond that. And that’s Good News! [email protected]