A. Purpose of the Right
The right in the Statute for union representation during investigatory examinations is premised on the similar private sector right of employees established by the Supreme Court in NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S. Ct. 959 (1975) (Weingarten). [n29] When enacting the Statute, Congress fashioned section 7114(a)(2)(B) after the Court's holding in Weingarten, and as a result, the term "Weingarten rights" is commonly referred to in the Federal sector when referencing the union's right to be present at an investigatory interview under section 7114(a)(2)(B). [n30]
The purpose of allowing an employee in an investigatory examination situation to seek union representation is to ensure that the agency can accomplish the purpose of the investigation -- to obtain all of the relevant facts and explore all issues regarding the matter under investigation. The right was not intended to allow an employee or his/her union to "hide" or confuse the facts, to refuse to answer or mislead investigators, or to delay or impede investigations. Rather, the right was intended to allow an employee, who may be nervous, fearful or inarticulate under the circumstances, the opportunity to raise all relevant facts and issues related to the matter under investigation. This interest should be consistent with the agency's interest in investigating the matter in the first instance. In fact, if implemented properly, an agency should welcome a union representative at these types of investigatory examinations because the union representative's presence should result in a more thorough and complete investigation.
B. Elements of an Investigatory Examination
1. Statutory Language
Section 7114(a)(2)(B) of the Statute provides:
§ 7114. Representation rights and duties.
(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.
(3) Each agency shall annually inform its employees of their rights under paragraph (2)(B) of this subsection.
Thus, in order for the section 7114(a)(2)(B) investigatory examination right to exist: (1) there must be a meeting between an employee and a representative of the agency; (2) the meeting must constitute an examination in connection with an investigation; (3) the employee must reasonably fear discipline; and (4) the employee must request union representation.
2. Participants at the Meeting
a. Employee in the Unit
The investigatory examination right to representation applies only to employees in a bargaining unit. Unlike the private sector Weingarten right which has been extended to unrepresented employees by a recent decision of the National Labor Relations Board, [n31] the right under the Statute is limited to the specific circumstances set forth in section 7114(a)(2)(B). That section limits the right to an employee in an appropriate unit.
b. Representative of the Union
Similarly, contrary to the private sector, [n32] the right to represent does not extend to any representative other than the union that exclusively represents the appropriate bargaining unit. Although the union may designate the individual to serve as its representative at a particular examination, that choice belongs to the union and not to the employee. For example, a union could designate a private attorney to serve as the union's representative at the investigatory examination, but the employee could not choose to be represented by a private attorney unless the union agreed to designate that attorney as the union representative. Moreover, the presumption that a union can designate the particular individual it wants as its representative may be rebutted where the agency can demonstrate "special circumstances" that warrant precluding that particular individual from serving. [n33] It may be necessary to postpone an examination because a particular union representative is not available, depending upon such factors as whether: the representatives' unavailability was caused by the agency, other capable representatives were available, and the impact of the postponement on the investigation. [n34]
c. Representative of the Agency
In most instances, the representative of the agency who conducts an investigatory examination will be the first or second level supervisor or, at a minimum, a manager from the same agency/organization as the employee being investigated. In these types of situations, there usually is no disagreement whether an agency representative participated in the meeting.
The Authority also routinely has found that an agency is responsible for the conduct of investigators who are not part of the organizational segment where the investigation occurs and the employee is employed, but rather who are employed by another office within the same agency. [n35] Similarly, the Authority routinely has found that an agency is responsible for the conduct of investigators who are not part of the same agency where the investigation occurs and employee is employed, but rather who are employed by another agency within the same Federal Department. [n36]
However, one issue which had been in dispute was resolved when the Supreme Court affirmed the Authority's and the Eleventh Circuit's decisions that an Office of the Inspector General investigator is a "representative of the agency" when examining a bargaining unit employee who reasonably fears that discipline might result from the examination. [n37] The Court rejected the argument that "representative" is limited to the entity that collectively bargains with the union. The Court also held that the Authority's decision is consistent with the Inspector General Act, which provides that an agency's OIG investigators are "employed by, act on behalf of, and operate for the benefit of" that agency. [n38] The Authority also reaffirmed that the Supreme Court's decision did not disturb precedent that the investigatory examination right to representation extends to criminal investigations. [n39]
Situations also arise, however, where an investigatory examination of a unit employee is undertaken by an outside law enforcement entity, such as a local sheriff's office or the Federal Bureau of Investigation. In my view, in those situations, the law enforcement entity does not serve as an agency representative. Nonetheless, the participation of an agency representative in that exam may satisfy the requirement that the interview be by a representative of the agency. [n40] Thus, in those situations, factors such as the agency representative's assistance in setting up the interview, presence during the interview, and participation at the interview would be relevant.
3. An Examination in Connection with an Investigation
a. Factors to Consider
In order to trigger the investigatory examination right in the federal sector, there must be an examination in connection with an investigation. The term "examination" is not defined by the Statute. Thus, the Authority examines the totality of circumstances surrounding each particular meeting and considers such factors as whether the meeting: (1) was designed to ask questions and solicit information from the employee; [n41] (2) was conducted in a confrontational manner; (3) was designed to secure an admission from the employee of wrongdoing; and/or (4) required the employee to explain his/her conduct. [n42]
b. Performance Meetings and Counseling Sessions
Agencies routinely meet with employees to discuss performance matters. Some of these meetings involve merely reviewing an employee's individual work plan or development plan, while others involve concerns over the quality, quantity or timeliness of the employee's work performance. These latter meetings are commonly referred to as performance counseling sessions. Applying the above factors, the Authority has held that a meeting conducted for the sole purpose of informing the employee of a decision which has already been reached, or for counseling an employee on individual performance is not an "examination" under section 7114(a)(2)(B). [n43] However, note that the title or characterization of the meeting given by a manager to describe a meeting does not control whether the meeting, in fact, is a counseling session or an investigatory examination. Similarly, a meeting that starts off as a performance counseling session may turn into an examination in connection with an investigation dependent upon the dialogue and dynamics of the meeting. [n44]
4. Reasonable Belief of Discipline
An employee must reasonably believe that the examination may result in disciplinary action against the employee to trigger the investigatory examination representational right. The reasonable belief determination is based on an evaluation of objective, rather than subjective factors. [n45] A reasonable belief of discipline can be found even if the agency did not contemplate discipline at the time of the exam. It is the possibility rather than the inevitability of future discipline that determines the right to representation. [n46]
5. Employee Request for Union Representation and Agency Response
An employee's request for representation must be sufficient to put the employer on notice of the employee's desire for representation and need not be made in any specific form, but rather depends upon the facts of each case. [n47] As noted in the strategy section at Section E.2. and 3., an agency should clarify a statement if it is uncertain if a request has been made. The failure to do so has been viewed as a denial which effectively prohibits the employee from making the request clearer and forecloses further discussion to clarify the request. [n48]
If an employee makes a valid request for representation, an agency has three options: (1) grant the request, (2) discontinue the interview, or (3) offer the employee the choice between continuing the interview without representation or having no interview. [n49] If, after having been given the option of continuing an interview without representation or having no interview at all, an employee elects to continue without representation, the right to representation has been waived.
6. Union Representative Participation at the Examination
The union representative at an investigatory examination has the right to take an active role. This includes the freedom to assist and consult with the affected employee. [n50] However, the Statute does not grant a per se right to engage in private conferences outside the presence of an investigator during an investigatory examination. [n51] Rather, the Authority will evaluate all of the agency's actions to determine whether they interfered with the active and effective participation by the union representative. Thus, some situations may call for a private conference. Moreover, the union's involvement must not interfere with the legitimate interests and prerogatives of the agency, recognized by the Supreme Court in Weingarten and by the Authority, in achieving the objective of the examination, preserving the integrity of the investigation, and avoiding an adversarial contest. [n52]
7. Union Right to Information About the Examination
Since effective representation at an investigatory examination often would be difficult or impossible in the absence of necessary information, information requested in connection with a union's representation of an employee at such an investigation is relevant to the representational function of the union under the Statute. Adopting the private sector standard, [n53] the Authority balances the right of a union to obtain relevant information for an investigatory examination against the interests of an agency employer in investigating and disciplining misconduct. [n54] Thus, there is no general right to discovery and the agency need not reveal its case nor the information it thus far has obtained. However, the representation right does encompass access to information that will allow the union to become familiar with the employee's circumstances and to effectively assist the examined employee and participate in the interview. [n55]
8. Unfair Labor Practice Remedy
a. Traditional Remedy for an Investigatory Examination Violation
In addition to a traditional cease and desist order and a remedial posting, where there has been a denial of representation rights under section 7114(a)(2)(B) and discipline has ensued, the Authority orders the agency, upon request of the union and the employee, to repeat the investigatory interview and to afford the employee full rights to union representation. [n56] After repeating the investigatory interview, the agency is ordered to reconsider the disciplinary action taken against the employee. [n57] If on reconsideration the agency concludes that the disciplinary action was unwarranted or that a mitigation of the penalty is warranted, the employee is made whole for any losses suffered to the extent consistent with the agency's decision on reconsideration. [n58] The agency is required to notify the employee of the results of the reconsideration, including whatever make- whole actions are to be afforded the employee and, if relevant, afford the employee any grievance or appeal rights that may exist under the parties' negotiated agreement, law or regulation with respect to the agency's action in reconsidering the disciplinary action. [n59]
b. When A Traditional Make-Whole Remedy for an Investigatory Examination Violation is Appropriate
Where a disciplinary action has been taken because the employee engaged in protected activity, a traditional make-whole remedy is appropriate. [n60] For example, the imposition of discipline for requesting a representative at an investigatory interview would be remedied by a traditional make-whole order.
c. Evidence to Establish a Make-Whole Remedy for an Investigatory Examination Violation
To determine whether a make-whole remedy is appropriate to remedy an investigatory examination violation, evidence should be developed to establish:
- whether the reason that the employee was disciplined was for asserting a right to representation, or for not attending the meeting without a representative, or for another reason; and
whether other employees had received similar discipline for a similar reason.
C. What Should Happen at an Investigatory Examination - - Role of the Parties
As noted above at section A of this Part, an agency is entitled to conduct investigatory examinations. The union is also entitled to actively participate on behalf of the unit employees who request a union representative. As noted above in Section B.6. of this Part describing the legal parameters of the union's right to actively participate, a balance must be struck between the agency's right to conduct the investigation and examine the employee, and the union's right to represent the employee. These two interests are not in conflict, and if implemented properly, may coexist and result in obtaining the most relevant information from the exam. However, if either party does not understand or accept its role, the potential for conflict remains great.
As with formal discussions, it is my view that a lack of a common understanding of both parties' roles at investigatory examinations often gives rise to conflict. The purpose of the examination should be for the agency to obtain all relevant information to enable the agency to determine what action, if any, is required on the matter under investigation. If the agency officials conducting the examination view themselves as detectives seeking a confession, agencies should not be surprised that a union representative might engage in tactics to thwart any attempt to incriminate the employee. On the other hand, the role of the union representative as originally envisioned by the Supreme Court is to assist the employee in providing all relevant information known to the employee. If a union representative attempts to hide facts or impede the examination, the union should not be surprised if an agency goes to great lengths to avoid having a union representative present. The employee's role at the examination is to be honest and frank in responding to questions. It is the employee's responsibility to answer the questions -- not the union representative's. The union representative may clarify questions, provide exculpatory evidence and explanations, point out the context of the events, and raise contract issues and other union institutional interests. Absent a firm understanding and appreciation of the parties' respective roles, not only is there a potential for conflict, but also a diminished chance for a successful examination.
D. Investigatory Examination Checklist
The following are questions which may assist union representatives and agency officials to determine whether a planned meeting is an investigatory examination. The goal is make the proper determination before a meeting occurs, rather than evaluating whether the agency violated the Statute after the meeting has taken place.
| INVESTIGATORY EXAMINATION ELEMENT | FACTOR INDICATING AN INVESTIGATORY EXAMINATION | FACTOR NOT INDICATING AN INVESTIGATORY EXAMINATION |
| PARTICIPANTS | Do you intend to have an agency or department employee, or a contractor as a substitute for the agency, conduct the exam? | Do you intend to have an outside law enforcement official not affiliated with the agency or department, without agency or department participation, conduct the exam? |
| PARTICIPANTS | Do you intend to examine a unit employee? | Do you intend to examine an employee who is not in the bargaining unit? |
| EXAMINATION IN CONNECTION WITH AN INVESTIGATION | Do you intend to ask questions of, or solicit information from, the employee about a matter under investigation? | Do you intend to ask questions about a routine workplace issue? |
| EXAMINATION IN CONNECTION WITH AN INVESTIGATION | Do you intend to secure an admission from the employee or ask the employee to explain his/her conduct? | Do you intend to ask the employee for his/her opinions on a topic? |
| REASONABLE BELIEF OF DISCIPLINE | If you were in the employee's place, and under the circumstances, would you be concerned that a response could "get you in trouble with " management? | If you were in the employee's place, and under the circumstances, would you have no "worries" about providing any information about the topic under investigation? |
| REQUEST FOR REPRESENTATION | Did the employee make a clear request for representation? | Did the employee make no request for representation? |
The following is a general list of the actions which an exclusive representative may and may not take with respect to an investigatory examination.
UNIONS CAN - - | UNIONS CANNOT - - |
| Designate its own representative to represent the employee at the exam, absent special circumstances | Designate a representative whose participation as a representative will interfere with the employer's interest in achieving the objective of the investigation or compromise its integrity |
| Ask management for a short delay so that a representative versed in the subject matter of the exam may attend to represent the union | Unreasonably delay the exam because a particular representative is not able to attend at the scheduled time Insist that more than one union representative attend |
| Ask management what the investigation is about | Demand that all questions to be discussed or documents to be referred to at the meeting be given first to the union representative before the meeting |
| Briefly consult with the employee before the exam | Delay the exam |
| Raise relevant facts and issues related to the investigation | Hide or confuse facts, mislead the investigators or delay or impede the investigation |
| Clarify questions being asked to ensure the employee understands the question | Answer the questions for the employee or repeatedly interrupt the questioning of the employee |
| Represent the interests of the bargaining unit and assist the employee in raising all relevant facts and issues | Raise issues that are not related to the investigation so as to disrupt, delay or impede the exam Engage in an argument with the management officials conducting the meeting which interferes with the purpose of the exam |
| Elicit favorable facts and extenuating circumstances | Take charge of the meeting so as to disrupt, delay or impede the exam |
| Consult with the employee during the examination | Disrupt, impede or delay the exam; or answer questions for the employee |
| Ask questions concerning the matter being discussed | Act in a manner that: interferes with achieving the objective of the exam; damages the integrity of the investigation; or creates an adversarial contest |
| Propose to negotiate, at the applicable time, over the manner in which the investigatory examination right will be implemented by the parties | Insist that the investigatory examinations be conducted in a particular manner as decided by the union |
E. Strategies to Avoid Investigatory Examination Conflict
As with formal discussions, before exploring strategies to assist the parties in avoiding conflict on investigatory examination issues, it is essential, in my view, for the parties to first understand and accept the purpose of allowing union representation at these examinations, as presented at section A above, and the respective roles of the parties, as noted above in section C. If an agency does not understand or accept that a union representative brings value to these examinations, it will be extremely difficult for an agency to develop a constructive strategy to obtain the most benefit from the union representative's presence. Similarly, if a union does not understand and accept that an agency has a right to examine employees as part of an investigation, it will be extremely difficult for a union to develop a constructive strategy to obtain the most benefit from its presence at the meeting. Once the parties understand and accept the respective roles of the union and the agency at these investigatory examinations, the following strategies are offered to assist the parties in obtaining the maximum benefit from the exam.
1. Train Employees to Make Clear Requests for Union Representation.
As noted above at section B.5., disputes often arise over whether an employee in fact made a request for a union representative. It is in the interest of the union, the agency, and the employee that an employee who seeks union representation make a clear request so that there is no ambiguity. Employees need to know that the Statute allows only for union representation, as opposed to a personal representative such as a coworker or private attorney. Making clear requests should eliminate any conflict over this issue.
2. Train Agency Officials to Differentiate a Denial of a Request for a Union Representative From a Statement that the Agency Does Not Believe a Representative Is Required Under the Circumstances.
Similar to disputes over whether there has been a request, there also are disputes over whether there has been a denial. Again, it is in the interest of the union, the agency, and the employee that denials of requests be clear. If an employee is uncertain, the employee should specifically ask if his/her request is being granted or denied. If an agency is attempting to explain why it does not believe that a representative is warranted, the agency official should be clear that the agency is not denying the request, but merely engaging in a non-coercive discussion. Agency officials also must be cognizant of the difference between discussing why it does not think a union representative is warranted and coercing an employee into not exercising the right to request a union representative. [n61] Making intentions clear should eliminate conflict over whether there has been a denial.
3. Train Agency Officials to Understand The Options When an Employee Requests Union Representation.
As discussed above at section B.5., when a employee requests a union representative the agency may grant the request, terminate the exam of the employee, or offer the employee the option of either continuing without a representative or not continuing the examination. When choosing the last option, the agency must be certain not to do so in a manner that interferes with, restrains or coerces the employee into continuing the exam without a representative. For example, an agency official may not imply that the employee will be disciplined on the underlying matter if the employee does not continue without a representative. Another option, of course, is for the agency to act at its peril based on its legal opinion that there is no right to a union representative at that particular meeting. Again, whatever course of action is taken, the agency must be clear so that all participants may intelligently evaluate and select their options.
4. Issues Concerning the Identity of the Representative and the Scheduling of the Examination
Although the union has the right to select its representative, disputes often arise when the particular representative is not available at the time the agency schedules the examination. As with formal discussions, an agreement between the union and the agency which establishes factors for the parties to consider when an exam is scheduled may alleviate these types of problems. [n62] If the union designates a particular representative who is not available for the scheduled meeting, the agency may consider postponing the interview if it does interfere with the investigation. If the interview cannot be postponed, the agency should explain its reasons to the union and ensure that the union has an opportunity to select another representative. Recall, it is the union, and not the employee or the agency, that controls the designation of the union representative.
5. Sharing Information Prior to an Examination
Again, as noted above at section B.7., the type and amount of information required to be supplied by an agency to a union representative will vary depending upon the particular facts of each situation. The parties may avoid disputes over sharing information by agreeing upon either a protocol or factors to consider that address whether any information about the exam will be shared before the exam takes place, and whether an employee will be allowed to meet with the union representative prior to the exam. If these issues are addressed through the collective bargaining process, there will be a guide for both parties that addresses their interests.
6. Clarifying the Role of The Union Representative
Similarly, general agreement upon the role of the union representative should curtail subsequent allegations that an agency allowed a representative to be present at an investigatory examination but not to participate. Educating agency officials and union representatives on the role of the representative, the role of the agency officials participating in the exam, and the obligation of the employee being interviewed to cooperate should alleviate many potential problems. For example, union and agency participants should have a common understanding of the difference between a union representative consulting with an employee and clarifying a question or answer from answering questions for the employee and delaying and disrupting the interview. Should a dispute arise during the exam, the parties should articulate their concerns and seek an accommodation, as opposed to abruptly terminating the interview. If the parties share expectations before the exam begins, there should be few disputes over the role of the union representative.
Footnote # 29 - Part III
In Weingarten, the Supreme Court explained that when an employee is questioned during an investigatory examination which the employee perceives may result in discipline, the employee "may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors[,]" whereas "[a] knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview." Id. at 263. The Court also stated that an exclusive representative's presence at the interview "safeguard[s] not only the particular employee's interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly." Id. at 260-61.
Footnote # 30 - Part III
Federal Bureau of Prisons, Office of Internal Affairs, Washington, D.C. and Federal Bureau of Prisons, Office of Internal Affairs, Aurora, Colorado and Federal Bureau of Prisons, Federal Correctional Institution Englewood, Littleton, Colorado, 54 FLRA No. 133, 54 FLRA 1502, 1509 (1998) (FCI Englewood), citing Legislative History at 926 (1979).
Footnote # 31 - Part III
Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92 (2000) (the Board recently reversed existing precedent and held that the Weingarten rights extend to employees in nonunionized workplaces, returning to the rule established from 1982 to 1985 by Materials Research Corp., 262 NLRB 1010 (1982)).
Footnote # 32 - Part III
Good Samaritan Nursing Home, 250 NLRB 207 (1980) (a unionized employee may request that a co-worker or a union representative be the representative).
Footnote # 33 - Part III
FCI Englewood, 54 FLRA at 1513 (no special circumstances establishing harm to the integrity of the interview by allowing a union representative who also was a witness to the incident under investigation).
Footnote # 34 - Part III
U.S. Immigration and Naturalization Service, New York District Office, New York, New York, 46 FLRA No. 114, 46 FLRA 1210, 1223 (1993) (no obligation to postpone the exam under the circumstances, although it "would have better served all parties' interests").
Footnote # 35 - Part III
See, e.g., Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 36 FLRA No. 6, 36 FLRA 41, 50 (1990), remanded sub nom. on other issues Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas v. FLRA, 939 F.2d 1170 (5th Cir. 1991) (INS Office of Professional Responsibility (OPR) investigators were "representatives" of INS for purposes of section 7114(a)(2)(B) and INS was responsible for the conduct of its organizational entity, OPR, even though OPR agents were acting under the direction and oversight of the U.S. Attorney).
Footnote # 36 - Part III
See, e.g., Department of Defense, Defense Criminal Investigative Service, Defense Logistics Agency and Defense Contract Administration Services Region, New York, 28 FLRA No. 150, 28 FLRA 1145 (1987) (DCIS), enforced sub nom. Defense Criminal Investigative Service, Department of Defense v. FLRA, 855 F.2d 93 (3rd Cir. 1988) (DCIS (part of DOD) investigators acted as representatives of DOD within the meaning of section 7114(a)(2)(B) when investigating DLA employees about alleged involvement in a shooting).
Footnote # 37 - Part III
National Aeronautics and Space Administration, Washington, D.C. and NASA, Office of the the Inspector General v. FLRA, 119 S. Ct. 1979 (1999) affirming, FLRA v. National Aeronautics and Space Administration, Washington, D.C., 120 F.3d 1208 (11th Cir. 1997), affirming, 50 FLRA No. 82, 50 FLRA 601 (1995).
Footnote # 38 - Part III
Id. 119 S. Ct. at 1985.
Footnote # 39 - Part III
U.S. Department of Justice, Washington, D.C. and U.S. Department of Justice, Office of the Inspector General, Washington, D.C, 56 FLRA No. 87, 56 FLRA 556, 560 (2000) (the relationship between the Office of Inspector General and the agency does not change when a criminal matter is investigated).
Footnote # 40 - Part III
DCIS, 28 FLRA at 1149 (section 7114(a)(2)(B) applies to OIG investigations that involve allegations of criminal activity, including when an investigation is jointly conducted by the OIG and local police).
Footnote # 41 - Part III
See, e.g., United States Department of Justice, Bureau of Prisons, Metropolitan Correctional Center, New York, New York, 27 FLRA No. 97, 27 FLRA 874, 879 (1987), reconsideration dnied, 29 FLRA No. 48, 29 FLRA 482 (1987) (agency sought information from the employee about previous statements to management and asked for explanations of inconsistencies).
Footnote # 42 - Part III
See, e.g., Department of the Treasury, Internal Revenue Service, 15 FLRA No. 78, 15 FLRA 360, 361 (1984) (IRS) (meeting concerning employee's threats against other employees was not an "examination" where the employee was warned about conduct, and no information about the conduct was solicited).
Footnote # 43 - Part III
United States Air Force 2750th Air Base Wing Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 9 FLRA 871, 872, 9 FLRA No. 117 (1982) (meetings were conducted for the sole purpose of, and were limited to, informing the employee of a decision that improper conduct had occurred and to counsel the employee).
Footnote # 44 - Part III
The Authority has not yet ruled on whether such matters as whether a physical examination accompanied by an interview, a drug test or a car search is an investigatory examination. Should such cases arise, the Office of the General Counsel will analyze all the circumstances, including whether any dialogue occurred and whether the exam was part of a specific investigation, and present such issues to the Authority when the facts indicate an examination in connection with an investigation occurred. See, e.g., U.S. Postal Service, 252 NLRB 61 (1980) (physical exam without any interview was not a Weingarten meeting) and Safeway Stores, 303 NLRB 989 (1991) (drug test as part of an investigation into an employee's conduct was a Weingarten meeting).
Footnote # 45 - Part III
Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Hartford District Office, 4_FLRA 237 (1980), enforced sub nom. Internal Revenue Service, Washington, D.C. v. FLRA, 671 F.2d 560, 563 (D.C. Cir. 1982) (reasonable belief of discipline even though the employee was not the subject of an investigation).
Footnote # 46 - Part III
American Federation of Government Employees, Local 2544 v. FLRA, 779 F.2d 719, 723 (D.C. Cir. 1986).
Footnote # 47 - Part III
United States Department of Justice, Bureau of Prisons, Metropolitan Correctional Center, New York, New York, 27 FLRA No. 97, 27 FLRA No. 874, 880 (1987) (employee's statement that "maybe I need to see a union rep." was a valid request).
Footnote # 48 - Part III
U.S. Department of Justice, Federal Bureau of Prisons, Office of Internal Affairs, Washington, D.C., 55 FLRA No. 64, 55 FLRA 388, 402-03 (1999) (proceeding with the exam after the employee stated he "wanted to talk to somebody" was viewed as a preemptive denial).
Footnote # 49 - Part III
Norfolk Naval Shipyard, Portsmouth, Virginia, 35 FLRA No. 116, 35 FLRA 1069, 1077 (1990).
Footnote # 50 - Part III
Department of Veterans Affairs, Veteran Affairs Medical Center, Jackson, Mississippi, 48 FLRA No. 83, 48 FLRA 787, 789 (1990) (unfair labor practice because the representative not allowed to speak).
Footnote # 51 - Part III
Bureau of Prisons, Office of Internal Affairs,Washington, D.C. and Phoenix, Arizona, 52 FLRA No. 43, 52 FLRA 421, 432-35 (1996) (representative not prevented from taking an active role even though prevented from conferring with the employee outside of the examination room).
Footnote # 52 - Part III
Federal Aviation Administration, New England Region, Burlington, Massachusetts, 35 FLRA No. 73, 35 FLRA 645, 654 (1990) (disclosure of requested information would have interfered with the agency's legitimate interests).
Footnote # 53 - Part III
Pacific Telephone & Telegraph Co., 262 NLRB 1048 (1982), enforced in relevant part, 711 F.2d 134 (9th Cir. 1983).
Footnote # 54 - Part III
FAA Burlington, 35 FLRA at 650-54 (1990) (union was familiar with the employee's circumstances and the misconduct under investigation and did not need the information).
Footnote # 55 - Part III
Id.
Footnote # 56 - Part III
U.S. Department of Justice, Federal Bureau of Prisons, Office of Internal Affairs, Washington, D.C., 55 FLRA No. 64, 55 FLRA 388, 395 (1999).
Footnote # 57 - Part III
Id.
Footnote # 58 - Part III
Id.
Footnote # 59 - Part III
Id. (citing United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA No. 56, 35 FLRA 431, 447-48 (1990).
Footnote # 60 - Part III
Charleston Naval Shipyard, 32 FLRA No. 37, 32 FLRA 222, 233-34 (1988) (adopting the conclusions and analysis that were applied by the NLRB in Taracorp Industries, 273 NLRB 221, 221-23 (1984), the Authority indicated that in cases involving violations of section 7114(a)(2)(B), traditional make-whole remedies would not be ordered where the "only violation is the denial of an employee's request for representation at an investigatory interview").
Footnote # 61 - Part III
U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 42 FLRA No. 56, 42 FLRA 834,839-40 (1991) (statements by an agency investigator to an employee that it would not be in best interest of employee if the union representative were present at the interview were deemed coercive).
Footnote # 62 - Part III
The presumption that a union can designate the individual it wants as its representative during an investigatory examination may be rebutted only where the agency can demonstrate "special circumstances" that warrant precluding a particular individual from serving in this capacity, i.e., agency must show how the integrity of the investigation would be undermined. Federal Bureau of Prisons, Office of Internal Affairs, Washington, D.C. and Federal Bureau of Prisons, Office of Internal Affairs, Aurora, Colorado, and Federal Bureau of Prisons, Federal Correctional Institution Englewood, Littleton, Colorado, 54 FLRA No. 133, 54 FLRA 1502, 1513 (1998) (FCI Englewood).