Weingarten Rights

[Crosstimbers Okie]

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


Title 5 USC Section 7114 (A)(2)(B) states that an employee is entitled to a union representative during:

(B) any examination of an employee in the unit by a representative of the agency in
connection with an investigation if--
(i) the employee reasonably believes that the examination may result in
disciplinary action against the employee; and
(ii) the employee requests representation.
(3) Each agency shall annually inform its employees of their rights under paragraph (2)(B) of this
subsection.

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.

[Von Nanega]

All too often folks think they can "handle" the investigation by themselves. They usually get handled themselves.

[Crosstimbers Okie]

Yeah, and without a kiss.

[gijanetexas]

The story behind the Weingarten Rights is interesting. There was a convienience store in Houston (Weingarten) which had an investigator come in undercover to see if one of their clerks was stealing fried chicken (as reported by a co-worker). The investigator found no evidence of theft by the female clerk and she had repeatedly requested a union rep, and he said no. It turned out the female clerk had bought the fried chicken at the store, but they had run out of small boxes so she had to put it in a bigger box. Another clerk verified this so the accused clerk was going to be exonerated, when she became upset and started crying, stating that the only thing she ever got from the store chain was a free lunch. This suprised the investigator who consulted her boss, who stated that free lunches were not allowed. So the investigator typed up the cost of free lunches and I don't recall the exact amount he came to believe she had taken, but for the 1970's it was a fairly big sum of money. The investigator demanded that she sign it and she refused. Subsequently to this, it was discovered that most of the employees at this store, to include the clerk's supervisor, ate free lunches at work and that there was no policy against a free lunch. In fact, the clerk was refering to her work at another of the stores in the chain which did allow free lunches. The investigator and supervisor told the clerk not to tell the union, and she did, and the union sued and won.