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Human Resources and Organizational Management

 

Human Resources and Organizational Management

Headquarters Marine Corps

Rights During Investigative Examinations
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The Federal Labor Relations Statute provides the union the opportunity to be represented at any examination of an employee in the unit by a representative of the agency in connection with an investigation if:

  • The employee reasonably believes that the examination may result in disciplinary action against the employee; and,
  • The employee requests representation.

This right is commonly referred to as the “Weingarten Right” and originates from a 1975 Supreme Court case.

The following four elements must be present:

  1. An examination of an employee in connection with an investigation. To be an investigatory examination, the meeting must involve the questioning of an employee as part of an inquiry to ascertain facts.
  2. The examination is conducted by an agency representative. An agency representative includes supervisors, managers, personnel specialists, internal agency auditors and inspectors general.
  3. The employee reasonably believes disciplinary action against him/her may result.
  4. The employee requests representation. The union’s entitlement to be present occurs only at the employee’s request. If the employee does not request union representation, management may hold the meeting without notifying the union.
No. The meeting or examination does not have to occur in connection with a formal investigation. An “investigation” occurs even when a supervisor seeks information to determine whether discipline should be taken against an employee. For example, an employee is suspected of being late for work, and the supervisor calls him or her into the office to determine if that is the case and, if so, why. This would be considered a Weingarten meeting.

The role of the union representative is to consult with, to advise and to otherwise assist the employee during the process but the employee should be the one to answer questions. The union representative is there to help the employee remember or bring out relevant information and to ask questions. Union representatives are not present to tell the employee not to cooperate or not to provide a statement. Employees are required to participate in official administrative investigations.

More information concerning the union’s role is included in the link at the end of this document.

The union may not:

  • Answer the questions for the employee.
  • Prohibit the supervisor from asking questions or requiring the supervisor to ask any question.
  • Unduly delay or disrupt the meeting by conferring with the employee about every question.
  • Require the supervisor to hand over documents or other information about the incident.

More information about what the union may and may not do at Weingarten meetings is included in the link at the end of this section.

If a meeting with an employee that qualifies as a Weingarten meeting, and the employee requests a Union representative upon learning the nature of the meeting, the agency official conducting the meeting has the following alternatives:

  • Grant the request. This may require postponing the meeting for reasonable time so a representative can make necessary arrangements to attend.
  • Discontinue the interview.
  • Offer the employee the choice between continuing the interview without a representative or having no interview at all.

The Federal Labor Relations Statute requires that employees be informed annually of this right. Except when a negotiated labor agreement specifically provides for additional notification of the right, an employee need not be informed at the start of the investigative interview.

For USMC employees covered by the Master Labor Agreement, the annual notice applies.

For employees covered by the Naval Health Clinic Quantico labor agreement, employees must be advised of their right to a representative prior to being questioned.

  • Discussions concerning an employee’s performance are not examinations in connection with investigations.
  • A requirement by management for an employee to prepare a written memorandum in connection with an investigation, setting forth the employee’s version of an incident, constitutes an “examination” of an employee. The written memorandum is an examination as it is designed to elicit information and have the employee explain his conduct. The employee is entitled to a union representative in connection with preparing the statement.
  • Meetings conducted for the sole purpose of, and limited to, informing an employee of a decision already reached by the agency are not examinations.
  • A meeting called by management to tell an employee not to repeat misconduct is not an examination as long as it was not designed to ask questions, elicit additional information, have the employee admit his alleged wrongdoing, or explain his conduct.
  • An investigative examination solely conducted by an individual outside of the agency (such as the FBI or local police department) does not trigger the Weingarten right since the examination is not being conducted by an agency official.

More information on how to determine whether the Weingarten right applies is included in a link at the end of this section.

Yes, but only if the investigation is being conducted by an agency official.
Links to More Information
    
CHECKLIST TO DETERMINE WHETHER AN EMPLOYEE IS ENTITLED TO UNION REPRESENTATION DURING AN INVESTIGATORY EXAMINATION  
UNION’S ROLE IN CONNECTION WITH INVETSIGATIVE EXAMINATIONS  
FEDERAL LABOR RELATIONS STATUTE [SECTION 7114(a)(2)(B) pertains)]