RIGHT TO UNION REPRESENTATION
This NBPC Legal Advisory is being distributed to help bargaining unit employees understand their right to Union Representation during investigative interviews. The right is contained in Article 31 (B)(3) of the CBA and Section 7114 (a)(2) of the Civil Service Reform Act of 1978. To be entitled to representation the member must reasonably believe that the examination may result in disciplinary action and must request the representation. The Agency provides a notice of the right when an employee has been issued a Notice to Appear (NTA) as the subject of an investigative interview. The notice is referred to as a “Weingarten Notice” because of the United States Supreme Court decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), upholding the right to representation.
Agents are sometimes issued an NTA to appear as a “witness” and not a “subject” in an investigative interview. It is recommended that all members who receive such a notice contact a Union Representative immediately, even if the member is not the subject of the investigation. In the past, members who have appeared as “witnesses” have later found themselves facing disciplinary action. Common allegations against witnesses include “lack of candor” and “failure to report.” Since the witness does not know the questions in advance of the interview, there is no way to be sure whether an answer may lead to disciplinary action. If the investigator believes the witness is lying or thinks the witness is withholding information, the witness may be subject to disciplinary action.
To invoke the right to representation, the member must state, “I reasonably believe that the examination may result in disciplinary action against me and I am requesting Union Representation.” Many investigators will simply allow the Representative to be present and move on with the interview. Some investigators will inquire as to the basis for the “reasonable belief.” The most common answers to this inquiry are: “I do not know what questions are going to be asked and if you do not believe my answers or do not think I am being forthcoming I will be subject to discipline;” “I am here because you believe I am a witness to misconduct by another agent and, as such, I may be subject to discipline if you do not believe I timely reported an incident or if I omitted any details of the incident;” “if you do not believe me you might refer me for prosecution under 18 U.S.C 1001.”
Some investigators will persist in denying representation in witness interviews, even after the member requests the representation and states a reasonable belief that his/her answers may lead to disciplinary action. These investigators argue that since the member is not the subject of the investigation, he or she cannot “reasonably believe that the examination may result in disciplinary action.” In responding to this attempt to deny representation, it is important to remember that the investigator has no authority to grant immunity from disciplinary action. It is LER or the DRB that decides whether to propose disciplinary action, not the investigator. The investigator’s job is to gather facts. If those facts warrant disciplinary action, such action will be proposed. It does not matter that the facts were gathered as part of a “witness” interview rather than a “subject” interview. It is also important to point out that it is not the investigator’s “reasonable belief” that is relevant.
If, after making the request and stating a reasonable belief that the inquiry may result in disciplinary action, the investigators continue to refuse to allow Union Representation, a decision must be made as to whether to proceed with the interview or refuse and leave. This decision must be made on a case-by-case basis, and preferably after discussing with your Union Representative. If the interview proceeds without representation, the Agency may have committed an Unfair Labor Practice (ULP).