IFPTE Local 4

Worker Rights

Employment Law

1. https://www.confortolaw.com/

2. http://fedsmill.com/

3.Legal Information and Assistance – National Women’s Law Center (NWLC) |
TIME’S UP LEGAL DEFENSE FUND

3. https://nwlc.org/legal-assistance/

Probationary Employee's Rights of Appeal

The single biggest lie told newly hired federal employees may be the words “Probationary employees have no rights.”  The second biggest might be that there is nothing the union can do for them during their probationary period. The truth is that a fired probationary employee has more than a dozen options for challenging a termination and only the union has the resources to enforce them.

http://fedsmill.com/probationtermination    

The standards of conduct provisions of the Civil Service Reform Act of 1978 (CSRA), among other statutes, guarantee certain rights to members of unions representing Federal employees and impose certain responsibilities on officers of these unions to ensure union democracy, financial integrity, and transparency. The Office of Labor-Management Standards (OLMS) is the Federal agency with primary authority to enforce many standards of conduct provisions. If you need additional information or suspect a violation of these rights or responsibilities, please contact OLMS at 1-866-4-USA-DOL (1-866-487-2365). You should also refer to 29 CFR 457.1 - 459.5, and your union's constitution and bylaws for information on union procedures, timelines, and remedies. Read more >>>

For more information concerning the Family Medical Leave Act (FMLA) please read the full article Read more >>>

HATCH ACT / Polictical Activity Information

For full information concerning restrictions on the political activity of federal employees under the Hatch Act, consult the U.S. Office of Special Counsel web site

The mandatory penalty for a violation of the Hatch Act is termination.  Only an unanimous vote of the Merit Systems Protection Board (MSPB) can reverse a decision to fire an employee and reduce the penalty to a suspension of no less than 30 days.

The following link provides answers to Frequently Asked Questions (FAQs) regarding the Hatch Act:

https://osc.gov/Pages/HatchAct-FAQs.aspx

Weingarten Rights

EMPLOYEE'S RIGHT TO UNION REPRESENTATION

The right of employees to have union representation at investigatory interviews was announced by the U.S. Supreme Court in a 1975 case (NLRB vs. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689). These rights have become known as the Weingarten rights.

Employees have Weingarten rights only during investigatory interviews.  An investigatory interview occurs when a supervisor questions an employee to obtain information which could be used as a basis for discipline or asks an employee to defend his or her conduct.

If an employee has a reasonable belief that discipline or other adverse consequences to his/her working conditions may result from what he or she says, the employee has the right to request union representation.  Management is not required to inform the employee of his/her Weingarten rights; it is the employee's responsibility to know and request.

Employees sometime confuse Weingarten rights with Miranda rights. Under the Supreme Court’s Miranda decision, police who question criminal suspects in custody must notify them of their right to have a lawyer present.  The Supreme Court did not impose a similar requirement in Weingarten.  An employer does not have to inform an employee that he or she has a right to union representation.


(If called to a meeting with management, read the following or present this statement to management when the meeting begins.)
"If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I respectfully request that my union representative, officer, or steward be present at this meeting. Until my representative arrives, I choose not to participate in this discussion."

When the employee makes the request for a union representative to be present management has three options:
(I) it can stop questioning until the representative arrives.
(2) it can call off the interview or,
(3) it can tell the employee that it will call off the interview unless the employee voluntarily gives up his/her rights to a union representative (an option the employee should always refuse.)

Employers will often assert that the only role of a union representative in an investigatory interview is to observe the discussion.  The Supreme Court, however, clearly acknowledges a representative's right to assist and counsel workers during the interview.

The Supreme Court has also ruled that during an investigatory interview management must inform the union representative of the subject of the interrogation.  The representative must also be allowed to speak privately with the employee before the interview.  During the questioning, the representative can interrupt to clarify a question or to object to confusing or intimidating tactics.

While the interview is in progress the representative can not tell the employee what to say but he may advise them on how to answer a question.  At the end of the interview the union representative can add information to support the employee's case.

When a supervisor calls an employee to the office to announce a warning or other discipline, it is not an investigatory meeting, because the supervisor is merely informing the employee of an already-made decision.  Unless the supervisor asks questions about the employee’s conduct, the meeting is not investigatory, and no Weingarten rights apply.

An employer’s failure to comply with a worker’s request for union representation, or a violation of any other Weingarten right, is an unfair labor practice.


QUESTIONS AND ANSWERS

STEWARD’S REQUEST
Q. If a steward sees a worker being questioned in a supervisor’s office, can he/she ask to be admitted?
A. Yes. A steward has a right to insist on admission to a meeting that appears to be a Weingarten interview.  If the interview is investigatory, the employee must be allowed to indicate whether he or she desires the steward’s presence.

COERCION
Q. An employee, summoned to a meeting with his/her supervisor, asks for his/her steward. The supervisor says,
“You can request your steward, but if you do, I will have to bring in the higher manager and you know how temperamental he/she is. If we can keep it at this level, things will be better for you.” Is this a Weingarten violation?
A. Yes. The supervisor is raising the specter of increased discipline to coerce an employee into abandoning his/her Weingarten rights.

CAN EMPLOYEE REFUSE TO GO TO MEETING?
Q. A supervisor tells an employee to report to the personnel office for a “talk” about his/her attendance. The employee asked to see his/her steward but the supervisor says no.  Can the employee refuse to go to the office without seeing his/her steward first?
A. No. Weingarten rights do not arise until an investigatory interview actually begins. The employee must make a request for representation to the person conducting the interview.  An employee can only refuse to go to a meeting if a supervisor makes clear in advance that union representation will be denied at the interview.

MEDICAL EXAMINATION
Q. If an employer requires medical examinations when workers return from medical leave, can an employee insist on a steward during the examination?
A. No. A run-of-the-mill medical examination is not an investigatory interview.

LIE DETECTOR TEST
Q. Do Weingarten rights apply to polygraph tests?
A. Yes. An employee has a right to union assistance during the pre-examination interview and the test itself.

LOCKER SEARCH
Q. If security orders an employee to open a locker, can the employee insist on a steward being present?
A. No. A locker search is not an investigatory interview.

COUNSELING

Q.  An employee is was given a written warning for poor attendance and told he/she must participate in counseling with the human relations department.  Does he/she have a right to a union steward at the counseling sessions?
A. This depends. If notes from the sessions are kept in the employee’s permanent record, or if other employees have been disciplined for what they said at counseling sessions, an employee’s request for a steward would come under Weingarten.  But if management gives a firm assurance that the meetings will not be used for discipline, and promises that the conversations will remain confidential, Weingarten rights would probably not apply.

PRIVATE ATTORNEY
Q. Can a worker insist on a private attorney before answering questions at an investigatory interview?
A. No.  Weingarten only guarantees the presence of a union representative.

TELEPHONE INTERVIEW
Q. Over the weekend, a supervisor calls a worker’s home to ask about missing tools. Does the worker have to answer the questions?
A. No. Weingarten applies to telephone interviews.  An employee who fears discipline can refuse to answer questions until the employee has a chance to consult with a union representative.

STEWARD OUT SICK
Q. If a worker’s steward is out sick, can the worker insist that a Weingarten interview be delayed until the steward returns?
A. Usually, no. Management does not have to delay an investigation if another union representative is available to assist the employee.

SHOP MEETING
Q. When management calls a meeting to go over work rules or the way in which to do a job, do employees have a right to demand a union representative?
A. No.  Weingarten rights do not arise unless management asks questions of an investigatory nature.  However, there are other types of meetings, called "formal discussions", which require the presence of a union representative, but this is separate from employees' Weingarten rights.  Information on formal discussions is available from the Federal Labor Relations Authority website @: www.flra.gov/Guidance_formal%20discussion_part%202

PARTICULAR REPRESENTATIVE?
Q. If an employee asks to be represented by her chief steward instead of her departmental steward, must management comply?
A. Usually, yes.  If two representatives are equally available, an employee’s request for a particular representative must be honored.

QUESTIONS ABOUT OTHERS
Q. If a worker is summoned to a meeting and asked about the role of other employees in illegal activities, can he/she insist on assistance from a union representative?
A. Yes. Although the employee may not be involved in wrongdoing himself, he/she risks discipline if he/she refuses to inform on others or admits that he/she was aware of illegal activities.  Because what he/she says at the meeting could get him/her into trouble, he/she is entitled to union representation.

Formal Discussions with Employees

Certain meetings between management and employees can sometimes discuss working conditions, including, for instance, an investigation of safety-related incidents/accidents.

However, it is violation of law for a Federal employer to convene certain meetings with bargaining unit members without inviting the Union where ALL of the following conditions are met:

(1) A "discussion" occurs at the meeting  [this can mean that only one person representing the Agency speaks and no dialogue occurs]; AND,

(2) the meeting is "formal" in nature [this typically means scheduled formally in advance (v. impromptu), for a specific room/place/time, and has a pre-determined intent/subject/agenda];  AND,

(3) present is at least one or more agency representatives (e.g., supervisor or manager) and one or more unit employees;  AND,

(4) the subject concerns any grievance or personnel policy or practice or other general condition of employment [e.g., in the case of accident investigations, this applies to safety-related policies, practices, programs].

Thus, if ALL of the above conditions are met, then management is required to invite the Union to such meetings.  To not do so is an unfair labor practice by management, because it prevents the Union from voicing or protecting the interests of the bargaining unit employees we represent and from protecting our contract rights.  Further, if employees are told that the Union cannot participate in a formal meeting, that is another unfair labor practice (coercion) by management.  Finally, if a meeting then changes/affects conditions of employment, it would be a further unfair labor practice (bypass) if management did not notify the Union of those changes and negotiate as required by law.

Therefore, if you have any questions/concerns about ANY meetings that fit the above criteria that you participate in that the Union is not present at, please feel free to contact your area stewards or the Local 4 office for further assistance

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