May 21, 2020 - Edwin Osorio - 2nd Vice President
In 1975 the U.S. Supreme Court ruled in NLRB V. Weingarten that federal employees have a right to union representation during an investigatory interview. These rights are called Weingarten Rights. All federal employees have the right to union representation before or during an investigatory interview. It is important to understand that this is your right and you cannot be punished for exercising your right. Prior to the 2019 National “Disagreement” management was required to make it clear that you had the option to elect union representation. In the 2019 contract the agency got rid of the mandate to inform employees of their right and substituted it with a once a year reminder that would be sent to employees electronically informing them they can ask for union representation during or prior to an investigatory interview.
The agency’s intent is very clear: it does not want you to know about your Weingarten rights. This was not an act of virtue; it was an act of malice predicated on its contempt for its employees. There is no other reason the agency could want you to not know your rights. The agency relishes every opportunity it can get to gaslight its employees. So now it is more important than ever that you know your rights and seek union representation. After you are told that there will be an investigation, you may invoke your right to representation and at that point the interview must be delayed until you have an opportunity to not only select a representative, but also consult with your union representative in private.
If management denies your request for union representation, they must end the interview immediately. Denying your request for representation constitutes an unfair labor practice (ULP). In the event you are denied, you have the right to refuse to answer any questions. You cannot be disciplined for this, however management will probably try to discipline you anyway; so you will need to let your union representative know so he/she can file a ULP complaint, as well as to put management on notice for their violation. Most importantly, continue to comply with management until your union representative has been notified and duly involved. You want to observe the old axiom “comply now, grieve later.” A charge of insubordination will make a potentially bad situation worse.
It is absolutely vital that you have a clear understanding of what is going on and know what your rights are. Prior to the new collective bargaining agreement management was required to inform you of the general purpose of the meeting, that the meeting was an investigation, you could potentially be disciplined, and you had a right to union representation. That is no longer the case because of changes the agency made in the 2019 collective bargaining agreement. All they are required to do now is inform you of the general purpose of the meeting. History has shown us that management has a propensity to downplay the importance of the meeting by not using words like Weingarten or investigation; they will often want to have this meeting immediately, giving you no time to think about it. They may make it sound routine. This is to lull you into a false sense of security. The one question you should ask to protect yourself is: “Could this meeting lead to disciplinary action?” If the answer is yes, you need union representation. If the answer is no, you should do whatever it takes to get that response in writing just in case you need to protect yourself.
So the obvious question you may ask yourself is “why do I need a union representative? I didn’t do anything wrong.” Most employees feel like they have never done anything wrong or going to the union may be an admission of guilt; other employees feel that going to the union would reflect badly on them (because of the adversarial relationship the agency maintains with the union) and tarnish their image with management. Conventionally, most employees have never had a Weingarten and erroneously fail to recognize the gravity of the situation before it is too late. The fact is that it is simply unwise to go into a Weingarten with management when they have all the information, and they only give you bits and pieces at a time on a need to know basis; in a controlled environment controlled entirely by management. If that doesn’t sound the alarm for you, the fact that there are two of them and only one of you should. And while they are writing everything down that you say, you will never have the opportunity to review what they write until they have already proposed disciplinary action. Can you trust what they are writing is what you actually said?
Unfortunately, what often happens is an employee declines his/her right to union representation, then finds out that the situation is more serious than they thought. Sometimes an employee will answer a question in a way that is disadvantageous to their situation—often because they didn’t really understand the question. This happens because the employee is not familiar with the process and doesn’t understand the importance of the interview, and that how they answer the questions could be the difference in being disciplined or not; the employee gradually becomes agitated and emotionally distressed. This is at least in part because the questions are nuanced and often repeated just slightly different. This is by design to elicit a different answer to the same question. In a court of law this might be considered entrapment. Within SSA it is called business as usual.
Your union representative has experienced these types of interviews many times and is very familiar with the techniques employed by management to achieve the results they are seeking. Even though a union representative cannot save an employee that may have committed a serious violation, a good union representative can often mitigate the circumstances and minimize the discipline received. Sometimes a union representative can prevent an employee from self-incrimination or being charged with lack of candor (often due to a faulty memory). Answering the questions without fully understanding the gravity of the situation can make it worse than it was—especially when the questions are often about an event that happened long ago or about a single case out of hundreds. The important thing is once you say something, you can’t take it back. And it is more difficult for the union to mount an effective defense after the damage has been done. So just like you would never go to court without a lawyer, you should always seek counsel from the union during a Weingarten interview.