9/27/10:  NTEU has won an important victory in a case involving the right of an employee in NTEU’s bargaining unit at the Nuclear Regulatory Commission (NRC) to union representation in a security clearance-related investigatory interview, and the appropriate role of the union representative during such interviews.

Under 5 U.S.C. § 7114(a)(2)(B), bargaining unit employees have a statutory right to union representation, upon their request, during investigatory interviews. This is commonly referred to as the Weingarten right. In his decision arising from a grievance filed by NTEU, the arbitrator issued two particularly important rulings:  1) that the employee was entitled to union representation when the interview related to the employee’s security clearance; and 2) that the employee was denied “meaningful representation” during the interview due to restrictions placed on the union representative’s assistance to the employee.

In this decision last week, the Federal Labor Relations Authority denied the agency’s exceptions to the arbitrator’s decision. First, the Authority ruled, there was no basis for exclusion of investigatory interviews related to security clearances from coverage under § 7114(a)(2)(B).  The employee could reasonably fear that disciplinary action--other than the revocation of his security clearance--could result from the interview.  Moreover, although an arbitrator lacks the authority to review the merits of a security clearance determination, the arbitrator in this case was not precluded from determining whether required procedural protections were satisfactorily provided to the employee. 

The Authority’s second holding applies to investigatory interviews of all bargaining unit employees, not only those who hold security clearances.  During the interview, the agency had refused to allow the union representative to communicate with the employee before he answered a question.  When the employee consulted the representative after answering a question, the agency then refused to allow the employee to supplement his previous answer.  After a comprehensive review of the appropriate role of the union representative in providing assistance to the employee (including reliance on National Labor Relations Board case law), the FLRA concluded that the agency’s restrictions interfered with the union representative’s ability to take an “active role” in assisting the employee, which includes the “freedom . . . to consult with the affected employee.”  Permissible actions by the union representative thus included, among others, whispering in the employee’s ear, and directing his attention to specific text in documents.

Especially because this decision contains such a comprehensive discussion of the dos and don’ts for union representatives in investigatory interviews, this decision makes for informative reading.