This article is directed to Federal managers and supervisors who are considering interviewing (questioning) an employee concerning some allegedly bad or questionable behavior. I have been doing a bunch of supervisory training lately and hearing lots about union representatives who appear to be seeking a profit opportunity based on managers’ lack of training and/or experience in conducting disciplinary fact-gathering meetings.
In Part One, we’ll look at the basics and staying out of trouble. Part Two offers options for managers who conduct these meetings to consider.
The Law
The Federal labor law reads as follows at 5 USC § 7114 (a)(2):
An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at… (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.
So why is it called a Weingarten Right?
It gets its name from a private sector case decided by the Supreme Court (NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975)). The case was decided shortly before the development of the Federal labor statute and the Congress decided to include the Court’s holding in our law.
How Does it Work?
It’s actually a pretty simple right. If (1) you represent an Agency; (2) are asking an employee in a bargaining unit questions that the employee must answer; and (3) the employee requests a union representative because he/she (4) reasonably fears discipline may result from the meeting, the request triggers a union right to attend the meeting in which this questioning is going on. Pay attention to what’s underlined, there’s a test later.
There Are Some Other Things Worth Your Attention
First, and most important, never, ever, under any circumstances, ever (Got it yet?) discuss with anybody a matter you think even remotely involves criminal behavior without involving an Agency lawyer assigned to that area, the IG, internal affairs, or other such duly authorized group. Believe me, once one of these folks gets involved, you’ll be gratefully on the sidelines and not likely involved in any discussion with the employee.
Second, check the labor agreement. Some Agencies have agreed to language requiring notice to the union if a meeting such as the one above is anticipated. If your agreement doesn’t, don’t do a notice or you could start your agency down a past practice road where such notices are required.
Third, it’s a union right, once triggered, and the employee doesn’t get anybody but a union representative or someone specifically designated to represent the union.
Fourth, the employee doesn’t have to specifically say that he/she wants a union representative. Any demonstration of the desire for help is considered a request.
Fifth, what do you do when the employee makes the request and there’s no union representative handy? Your choices are:
- Postpone the interview until the union is able to be present,
- End the interview indefinitely, or
- Give the employee the option of continuing without a union representative or foregoing the benefit of the interview. If the employee elects to continue without representation, get it in writing before proceeding. (Thanks CPMS)
So What’s the Union’s Problem
According to a number of supervisors, union reps are watching too many old Perry Mason reruns from Netflix and decided they’re not in a meeting with management but rather playing a role that includes scenes from My Cousin Vinny and A Few Good Men.
The union’s role, according to the FLRA, includes asking the manager to clarify questions that are asked of the employee, helping an employee present the facts in his defense, and "consulting privately" with the employee. However, managers may insist on the employee’s own account of the events, and a union representative may not obstruct an investigation.
On the other hand:
You Ain’t No Jack McCoy or Bobby Goren
Anyone who watches Law & Order or Law & Order: Criminal Intent knows that Jack’s laser-like examination or Bobby’s stealthy sneak-up-on-‘em questioning will get an admission of guilt and copious gut-spilling every time. Good triumphs over evil and soap is sold in prodigious amounts. Since we can’t escape a version of Law & Order (it’s on every cable channel 24 hours a day, at least in reruns), we must try to remember that it’s absolutely fictitious. It even says so at the beginning of every episode.
So your Agency expects you to conduct an administrative inquiry which includes the employee who allegedly did the deed. What should you do?
An "If You Must Conduct an Investigative Interview" Checklist
As an absolute minimum do all of the following:
1. Assume the union will be present.
2. Find someone to attend with you such as a Human Resource specialist preferably a labor or employee relations person or an Agency lawyer, if HR is not available.
3. Prepare an introduction in advance. Keep it simple and to the point. Include:
a. Why you’re conducting this meeting.
b. What’s been alleged.
c. That this is an opportunity for the employee to explain what happened.
d. That you’ll give the employee a copy of the answers he/she provides and an opportunity to correct them.
4. Prepare a detailed set of questions.
a. Write them down.
b. Go over the questions and group them in a logical way.
c. Go over them again and put the grouped questions in time order. In other words, if something happened first, ask about it first.
d. Go over them again and simplify them making sure there are no multiple answer questions. E.g., Instead of "Did you call in on Friday, what time was it, who did you speak with and what did each of you say?", it’s better to ask each separately:
i. Did you call in on Friday?
ii. What time did you call? etc.
e. Go over them with whoever will attend the meeting with you and revise them appropriately.
f. The last question is always, "Is there anything else I need to know in considering whether administrative action of some kind is necessary?"
5. Prepare a closing statement, including:
a. That you’ll prepare a set of answers according to what the employee said and offer him/her an opportunity to correct.
b. That you’ll keep him/her apprised of the result of the meeting as you are able.
c. Thank the employee and the union and adjourn.
6. Prepare the space.
a. Assure privacy.
b. Turn off the phone
c. Have a chair for everybody.
d. Think through whether you’ll sit behind the desk in your office or at a table.
e. Have a pen and your questions on paper with sufficient room between each to
7. Prepare yourself for the meeting and conduct it.
a. Be ready for conflict. After all, you’re inquiring into misconduct.
b. Don’t deviate from your question list without substantial cause. It’ll through you off to do so and you can call a later meeting if a surprise comes up.
c. Remember this is your listening opportunity. Ask the question and let the employee answer.
d. Don’t argue about anything.
e. If you are interrupted or questioned, remind whoever did it that you are here to get the facts from the employee and that’s all.
f. The employee must cooperate with the inquiry (see Part Two) and may not refuse to answer questions. If the employee answers, "I don’t recall" to every question, remind them of their obligation to cooperate and note each response.
g. It is important to keep in mind that one of the purposes of the interview is to establish the exact story of the employee on a specific date and time.
8. Get the questions and answers in printed form and provide them to the employee. Tell them in writing you want any changes by noon the next workday or you will consider the answers given in the meeting to be as the employee wants them.
9. Initial and date either the employees reply or the Q&A you provided them if they make no reply.
Stay tuned for Part Two in which we’ll look at some options to conducting these meetings that managers should consider.
As always, any opinion expressed above or mistaken case cite is my fault alone. By the way, thanks to the folks who attended Advanced Employee and Labor Relations in Boston last week. There was a lot of good discussion and even more good ideas from the group. There’s nothing better for me than going home knowing more and with more to think about than when I showed up.
