AFSA Reminds Employees of Weingarten Rights

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The latest communication from AFSA reminds employees of their right to union representation. Relevant section reprinted below:

AFSA reminds you of your right to AFSA representation (“Weingarten right”), and strongly encourages you to invoke that right any time you are being interviewed by OIG, DS, the RSO or your supervisor about any matter which you reasonably believe could result in a proposal for disciplinary action against you. See 2 FAM 4322.3(h). In this situation, the agency does not have to inform you of your Weingarten right – you must invoke it on your own. You are permitted a reasonable amount of time to obtain AFSA representation and it is an Unfair Labor Practice if the agency blocks your right to representation by insisting the interview go forward without AFSA.

In addition to your Weingarten right, under 3 FAM 4322.3(e) and (i), you have the right to know whether you are the subject of an investigation or just a witness and, whether the interview is voluntary or compelled, and the principal purposes for which the information is intended to be used. If you are told the interview is voluntary, this means it could lead to criminal charges against you. Therefore, it is doubly important that you not to agree to the interview in this situation without first talking to one of AFSA’s attorneys.

AFSA is aware of several recent cases in which the agency representative did not advise the employee of his or her rights, and later argued that the interview was not an “administrative inquiry” under 3 FAM 4322.3 but merely a “counseling session” between a supervisor and a subordinate employee. In a recent Grievance Board decision, the Board found that a meeting between a employee and his supervisor to “uncover facts that may be used as a basis for discipline” was not merely an informal counseling session but an administrative inquiry and the agency erred by not advising the employee of his rights.

Your Weingarten Rights

During an investigatory interview, the Supreme Court ruled that the following rules apply:

The employee must make a clear request for union representation before or during the interview. The employee cannot be punished for making this request.

After the employee makes the request, the employer must choose from among three options. The Employer must either: grant the request and delay questioning until the union representative arrives and has a chance to consult privately with the employee; deny the request and end the interview immediately; or give the employee a choice of having the interview without representation or ending the interview.

If the employer denies the request for union representation, and continues to ask questions, it commits an unfair labor practice and the employee has a right to refuse to answer. The employer may not discipline the employee for such a refusal.