Courts and Agencies have clearly established that during disciplinary investigations, union representatives are entitled to assist members in presenting their defense. In a recent Federal Labor Relations Authority (FLRA) case, the board evaluated the role of a union representative in an employer investigation interview (1). In the case, a federal corrections employee was randomly selected for drug testing and tested positive for marijuana. During the investigatory interview the employee’s union representative asked about the procedure used during the drug test. The employer’s investigator told the union representative not to ask any more questions and fearing personal discipline the union representative remained silent.
The FLRA found that union representatives are entitled to take an active role in assisting unit employees in presenting facts for their defense. An investigator may only limit a union representatives’ participation in an investigation if the representative is abusive or excessively interruptive. The FLRA made it clear that a union representative cannot be relegated “to the role of a mere witness.” A union representative has the right to play an active role in an investigation and elicit information that can be used to benefit the employee. Employers are not entitled to question an employee without any interruptions and should expect comments, questions, and statements from the union representative about possible infringements on employee rights.
Cases like the one cited above present persuasive authority for the Public Employment Relations Board (PERB). This case provides insight into a union representative’s rights and the Meyers-Milias-Brown Act (MMBA) in general. Recently agencies have been giving admonishments that representatives have to wait until the end of the interview to ask questions through the investigator, these admonishments are almost certainly illegal under cases like the one cited above.
(1) U.S. Dept. of Justice Federal Bureau of Prisons Federal Correctional Institution Englewood Littleton v. American Federation of Government Employees Local 709, 2017 WL 1862381 (FLRA, 2017).