Settlement Undercuts Our 'Weingarten' Rights
Greg Bell, Director
(This article first appeared in the May/June 2008 issue of The American Postal Worker magazine.)
In September 2007, the National Labor Relations Board (NLRB) informed the APWU that it had been engaged in negotiations with the Postal Service to reach a settlement agreement on a pilot program to address pending and future “Weingarten” violations at postal facilities.
Under the Supreme Court's Weingarten decision, you have the right to be provided with a union representative – if you request one – in any management- conducted interview that you reasonably believe could lead to discipline. You also have the right to refuse to submit to such an investigatory interview without union representation.
According to the NLRB, the purpose of the pilot program is to explore a method of resolvingWeingarten disputes without resorting to litigation and to obtain meaningful remedies that are not currently available through administrative proceedings before the NLRB.
An Unfortunate Backdrop
Unfortunately, the NLRB has a shameful history of avoiding litigation with the Postal Service at all costs. The Court of Appeals previously issued a nationwide judgment against the USPS in 1992, ordering the Postal Service to "cease and desist" from Weingarten violations. In spite of continuing Weingarten violations, the Court of Appeals approved a consent order in 2003, authorizing a settlement agreement that simply required training for management officials. Despite even more continuing Weingarten violations, rather than initiating contempt proceedings, the NLRB has once again entered into another settlement agreement.
Furthermore, we certainly do not agree that this settlement agreement provides satisfactory remedies for employees whose Weingarten rights have been violated. In fact, we believe just the opposite: The agreement jeopardizes protections provided to employees under applicable laws and the Collective Bargaining Agreement. (For more information on Weingarten rights see the Jan./Feb. issue of The American Postal Worker.)
In addition, we object to the NLRB engaging in unilateral negotiations with the Postal Service on matters affecting our contract and grievance process. We believe these one-sided negotiations undermine our efforts to represent members of our bargaining unit.
Notwithstanding ongoing discussions on this issue and the NLRB's failure to address our major concerns, on Feb. 28, the board informed the APWU of its decision to institute the settlement agreement. The APWU intends to continue our challenge to the settlement. Our opposition to the proposed settlement will include a challenge when the NLRB asks the appeals court to approve a consent order embodying the new agreement.
Why We Oppose the Agreement
Under the USPS/NLRB settlement agreement, whenever the Postal Service commits a Weingarten violation, it can (1) avoid an NLRB cease-and-desist order or contempt proceeding; (2) correct its mistakes by conducting a new interview; (3)make reference to the actions taken under the settlement agreement as a defense in the grievance procedure or other proceedings; and (4) retain information it obtains through the unlawful interrogation (the investigatory interview conducted in violation of Weingarten) for use in possible criminal matters.
It should be noted that according to the settlement agreement, if an unlawful investigatory meeting results in discipline, the Postal Service must conduct a new investigatory meeting if the employee and/or union request one, and must notify the employee involved of his or her Weingarten rights.
However, it is the APWU's position that an employee who is deprived of Weingarten rights in an initial interview should not request a new investigatory meeting, because it would only compromise the employee's statutory and contractual protections. Such a request would relieve the USPS of any liability for violating the employee's rights, while allowing the Postal Service to retain and use the information it obtained improperly.
Under our Collective Bargaining Agreement, an employee has rights beyond those provided by Weingarten. It is a violation of "due process" under the terms of our National Agreement (1) to deny an employee's request for union representation to assist and participate in an investigatory interview that the employee has a reasonable belief may lead to discipline; and (2) to refuse to permit a union representative to assist and participate in an investigatory interview.
In addition, regardless of whether the Postal Service decides to provide a union representative or forgo an investigatory interview under Weingarten, under the "just cause" provisions of the National Agreement, management still must conduct a pre-disciplinary interview before a final decision can be made to issue discipline. (A pre-disciplinary interview is also required under laws regarding the rights of government employees.)
Another objection the APWU has to the settlement agreement is that it permits the Postal Service to retain unlawfully obtained information in Postal Service "attorney files." What is particularly troublesome is that the >NLRB refused to answer or offer clarification to any of the APWU inquiries related to criminal matters that might be handled by the Office of Inspector General, the Justice Department, the U.S. Attorney's office or other local or state entities.
Moreover, the NLRB refused to explain why it believes it would be appropriate to apply the USPS/NLRB settlement agreement once a grievance has been filed.
Advice to Employees
If your Weingarten rights are violated, you need not and should not request that the Postal Service conduct a new investigatory meeting. If postal officials have violated your rights, you don’t want to give them a second bite at the apple.
You should ask for a union representative and file a grievance within 14 days from the date of the violation. In addition, we request that local unions forward to my office copies of any grievances that involve violations of
It is important to remember that you should always request the presence of your APWU representative if you are questioned by management, a Postal Inspector, or an agent of the Office of the Inspector General, even if you believe you are innocent of any wrongdoing. You should remain silent until you have consulted with your
representative or attorney.
One of the main objectives of an interrogator is to manipulate the individual into disclosing information at the investigatory interview – particularly in the absence of a union representative, who could help clarify a question and assist an employee in articulating an explanation. It can’t be over-emphasized: You should always request a union representative when there is a reasonable belief that the investigatory interview could result in disciplinary action.
An individual has six months to file an unfair labor practice charge with the NLRB. We request that local unions also contact my office to discuss at what point an unfair labor practice charge should be filed with the NLRB over a Weingarten violation.