Union Rep’s Role in Investigatory Interviews of Bargaining Unit Employees

An unfair labor practice (ULP) was committed when an investigative agent of the Office of Inspector General (OIG) for the National Air and Space Administration (NASA) unduly restricted the role of the union representative during the interview with the bargaining unit employee, thus, violating the employee’s Weingarten rights.

The unfair labor practice decision in this case arose out of the investigation of an employee of NASA’s George C. Marshall Space Flight Center (Marshall Center) in Huntsville, Alabama. NASA OIG Washington, DC and AFGE, Local 3434, 50 FLRA No. 82; 50 FLRA 601 Affirmed at 97 FLRR 1- 8008, 95-6690 (11th Cir. 09/02/97).

In January 1993, a NASA-OIG investigator sought to interview an employee who was purportedly linked to some documents which posed a serious threat to co-workers. Because of the fear of discipline stemming from the interview, the employee stated he wanted union representation present. Under Weingarten, after the employee requests union representation, the agency must either grant the request or deny the request and end the interview. The agency investigator in this case agreed to the employee’s request and the interview proceeded, however, at the interview, the agency investigator imposed “intrusive ground rules” which unduly limited to the union representative’s role. In addition, during the course of the interview, the representative was not allowed to provide assistance to the employee and the investigator denied the representative the right to see documents which were shown to the employee and his attorney (who was also present). This incident displays an infraction of an employee’s right under Weingarten to be actively represented by the union. By refusing to allow the union representative to participate actively in the investigatory interview, the agency committed an unfair labor practice.

We must remember the importance for agencies to remember to abide by the Weingarten rules in their investigatory interviews. Under Weingarten, the employee is entitled to have a union representative actively participate in the interview. In this case, the agency investigator interfered with the representative’s ability to do so. It is not sufficient enough to simply grant an employee’s request for union representationt o be present. The representative must be allowed to actively participate, which includes allowing him or her to speak during the interview, to request clarification of any questions, and to advise the employee in responding to questions.

One must ultimately remember that if these Weingarten rights are violated, the agency is not only faced with a possible unfair labor practice, but any subsequent discipline or adverse action may be severely weakened or overturned.