Questions, we get wonderful questions here at FELTG. And the one below from a well-respected senior practitioner raises a couple of issues of importance to all you unionized readers out there: the difference in union rights between a formal discussion and a Weingarten investigation. The FELTG responses to the questions are in bold.
Dear Beloved FELTG-
This whole business of representation at investigatory examinations has me utterly confused. For a long time – and please correct me – I’ve distinguished between formal and investigatory meetings by telling folks this: Union representation in formal meetings flows from the Union; Union representation in investigative examinations flows from the employee.
That is, in formal meetings the agency gives the Union a “heads up” (prior notification) and a chance to attend.
In investigatory meetings, 7114(a)(2)(B)(ii) places the burden of exclusive representation on the employee, not the union. That’s how I’ve always read the statute. So I’ve told supervisors and investigators long ago if the employee does not request, no need to notify the union. Q: Was (or am) I right? Yes.
Folks who tell me a Union is entitled to representation in investigatory meetings without the employee’s request or permission drive me crazy. They are wrong. There is no authority for that position. But I’m more than willing to grant my ignorance of case law on this matter. But why does the Statute distinguish between the two if there were no difference? There IS a difference. In formal meetings, the employee has no reasonable belief he might suffer discipline (might be irrational belief). In investigatory interviews, the employee may well reasonably believe, “Uh oh, this may not turn out well for me…”
I’m told the Authority gives great latitude to the “reasonable belief” clause Correcto, even granting representation when the employee has no reasonable belief personally. But this does not speak to the exclusive representative’s alleged institutional right to attend uninvited to an investigatory examination. There is no institutional right for the union to attend an investigatory interview.
In its “Guidance on Meetings,” the Authority cites the high court’s justification for representation by the following rationale:
The Court also reasoned that by attending the interview, the exclusive representative
“protects the ‘interests of the entire bargaining unit’” and is “able to exercise ‘vigilance
to make certain that the employer does not initiate or continue a practice of imposing
punishment unjustly.’” (Guidance, 17-18)
This language tells me the union has an institutional interest in attending an investigatory examination FLRA has never reached this conclusion. Note the “also” in the statement. That indicates that this is a secondary purpose of the Weingarten right, separate from the primary purpose of allaying fears the employee might have, not solely to protect the interest of the employee under investigation. Hence, it has a right to attend even if the employee does not request? No, there is no case law that says that, and the statute specifically requires an employee REQUEST: “and requests representation.” 5 USC § 7114(a)(2)(B).
The Weingarten decision from the Supreme Court itself states, “The right arises only in situations where the employee requests representation. In other words, the employee may forgo his guaranteed right and, if he prefers, participate in an interview unaccompanied by his union representative.” 420 US 251, 257 (1975). If the Supremes say that the employee can participate in the interview without the union, that’s good enough for me. There simply is no separate union right to be present independent of the employee’s request, although if the employee requests union representation, such representation provides the secondary benefit of the union protecting the interest of the BU.
In clarifying 7114(a)(2)(B)(ii), the Authority does not address my burning Q of whether the exclusive representative can attend uninvited or even at the expressed opposition of the employee (pp 20-1). Put out the fire. The union has no right to attend without the employee invoking Weingarten.
Q: So is it a violation of the statute if the agency honors the employee’s silence or tells the agency (even the Union) he does not want representation? No. Absolutely not. If there were such a union right, we would have a case on point by now. We do not. Is it a ULP to exclude the exclusive representative from the investigative interview? We don’t exclude the union because the union has no right to be there. Exclusion comes only if there is a commensurate right to be present (e.g., once the employee invokes his right to a union rep in an investigatory meeting, the union has a right to be represented by whoever it chooses.) Therefore, if management were to exclude the chosen union rep, that would be a ULP; e.g., FCI Englewood, 54 FLRA No. 133 (1998).
And additionally, suppose the employee wants his own representative (attorney or not) not affiliated to the union or not approved by the union? The employee can want chocolate cake for breakfast. However, there is no right to it. If the agency decides to allow him a rep even though there is no entitlement, the employee can choose whoever he wants, whoever is willing to do it, and whoever the agency will allow. What then? Must the representative be necessarily approved by the exclusive representative? No, because the primary purpose of Weingarten is to provide protection to the employee, not to benefit the union.
As always, we hope this helps. Wiley@FELTG.com