Advice for Managers About Weingarten Meetings

These articles are directed to Federal managers and supervisors who are considering interviewing (questioning) an employee concerning some allegedly bad or questionable behavior. I have been doing a bunch of supervisory training lately and hearing lots about union representatives who appear to be seeking a profit opportunity based on managers’ lack of training and/or experience in conducting disciplinary fact-gathering meetings.

Part One, Generally Let the Pros Handle ‘Em or Try An Alternate Method looks at the ins and outs of running a Weingarten or Investigative meeting. Included in the article is a planning checklist for a supervisor or manager anticipating such a meeting..

Part Two, Some Options to Consider looks at why supervisors don’t have to hold a meeting and why it might be in your interest to try another way of getting information from an employee alleged to have committed misconduct.

What can you take away from these articles that will help you better do your job as an HR practitioner? What information can you share with supervisors as part of your advisory responsibilities?

Winning at Weingarten

Sixty years ago while living in my native state of Texas, my brother was a bag boy at our neighborhood grocery store – Weingarten’s. Long after my dad was transferred to New York, an employee of J. Weingarten, Inc. was grilled by a company investigator for allegedly shortchanging her employer. She repeatedly asked to have a union representative present; however, those requests were denied.

The evidence against her was unconvincing, however, she protested she had only taken her free lunches, a benefit allowed at many Weingarten stores but not hers. She was fired… and the rest is history.

The “Weingarten Right” stems from the Supreme Court’s decision in her case, which was issued in 1975 – 3 years after that fateful interview and request for representation. By then, the National Labor Relations Board had found in the union’s favor, the Fifth Circuit Court of Appeals had reversed the Board, and the Supreme Court reversed the appeals court ruling in a split decision. Labor law was forever changed.

The government isn’t a business

At the time, NLRB v. J. Weingarten, Inc. did not apply to Uncle Sam’s employees and unions; however, the passage of the Civil Service Reform Act of 1978, 5 U.S. Code § 7114(a)(2)(B) created the same right for unions in the Federal government… [For the rest of the article, click here.]

Were you aware of all the aspects of Weingarten rights discussed in the article? What recommendations in the article do you think would be helpful for your agency in general and for you as an HR practitioner in specific? 

Private-Sector NLRB Weingarten Ruling Could Affect Federal Sector Too

A bargaining unit employee’s statements to Agency representatives concerning his or her attempts to obtain union representation will likely be sufficient to trigger Weingarten even if the employee does not make an explicit request for representation in the underlying investigatory interview. A recent National Labor Relations Board (“Board”) decision issued last month seems to interpret Weingarten more liberally than ever before.

While federal agencies have held the traditional view that the right to union representation at a disciplinary interview arises “only in situations where the employee requests representation,” NLRB v. J. Weingarten, Inc., 430 U.S. 251, 256-57 (1975), a June 15, 2018 decision by the Board appears to loosen the standard for determining when Weingarten rights are triggered.

In Circus Circus Casinos, Inc. d/b/a Circus Circus Las Vegas and Michael Schramm, 2018 NLRB LEXIS 215, Case 28-CA-120975 (Jun. 15, 2018), the Board adopted the Administrative Law Judge’s finding that the employer violated a bargaining unit employee’s Weingarten rights by denying a union representative at a due process meeting concerning the employee’s suspension from work. [For the rest of the article, click here.]

How does your agency identify in what situations a Weingarten right may be triggered? Have you seen a situation in which an employee should have been provided with union representation but wasn’t? What happened in that situation?

Report Suggests Improvements for Handling Federal Employee Misconduct

A new report from the Government Accountability Office discusses ways that federal agencies can more effectively address employee misconduct.

GAO said that an average of less than 1 percent (17,000) of the federal government’s 2.1 million employees are formally disciplined for misconduct annually. While this is a very small number, GAO notes that even a few cases of employee misconduct can have significant impacts on workplace morale and impede an agency’s efforts to achieve its mission.

Based on data from the Office of Personnel Management, federal agencies.. [click here for rest of article]

Were you aware of the required process illustrated in the graphic from the GAO report? Does your agency utilize the actions GAO recommends for better prevention and addressing of employee misconduct?

OPM Reports 4 Percent Increase in Use of Official Time Over Two Years

The Office of Personnel Management released a report Thursday on the use of official time at federal agencies in fiscal 2016, stating that the amount of paid time used by union officials for representational duties had increased by 4.12 percent since fiscal 2014.

In a press release accompanying the report, OPM officials assailed the practice, in which federal employees are compensated for their work on behalf of the union for representational matters, calling it “taxpayer funded union time” that does not serve the public interest.

“In other words, official time is treated as work time, thus is funded by the American taxpayers while no service to the taxpayer is performed,” OPM wrote.

The report found that in fiscal 2016, union employees… [for more, click here]

Do you agree with OPM officials that ” official time is treated as work time, thus is funded by the American taxpayers while no service to the taxpayer is performed”? Why or why not? Use examples from your agency to support your opinion.

$174,789,810 for Official Time in FY 2016

The Office of Personnel Management (OPM) has issued its latest report on “official time.” Official time is a term used to describe time spent by federal employee union representatives who receive their government salary and benefits while performing duties as a union official.

According to a press release from OPM: “Official time, more accurately referred to as ‘Taxpayer Funded Union Time’ is paid time spent by Federal employees performing representational work for a bargaining unit in lieu of their regularly assigned work. In other words, official time is treated as work time, thus is funded by the American taxpayers while no service to the taxpayer is performed.

According to the OPM report, the cost for this use of paid leave by federal employees acting on behalf of a union increased by 7.55 percent from Fiscal Year (FY) 2014 to FY 2016. The cost increased from… [for more, click here].

What of the information in this article surprised you? What confirmed any previous assumptions? How does this information apply to your agency?

Union Official Time: Why a Basic Change is Needed

In this article, the author, a former federal agency labor and employee relations director, currently working with and training federal agencies to resolve employee problems at all levels, discusses the use of official time in federal labor relations. He focuses on the key question:

  • Did the Congress of the United States intend to eliminate any labor dollar cost of negotiations to an employee union and place the entire cost of the time spent by union employee representatives on the American taxpayer?

and addresses five problems with the way administrative bodies such as the FLRA and EEOC have interpreted federal labor relations law.

To read this article, click here.

Which of the five problems and discussion did you agree with? Didn’t agree with? Do you have other questions? What are they?

Managers Can Fire Bad Feds, They Just Don’t

Federal managers could easily fire most poor performing employees early in their career, they just don’t. They also could quickly remove new supervisors from positions for which they turn out to be ill suited and return them to the non-supervisory roles at which they excelled. But they rarely do. That’s according to research compiled by the Merit Service Protection Board and released Tuesday.

In “Adverse Actions: The Rules and the Reality,” MSPB aims to give federal managers a guide to better managing the workforce by more quickly shedding poor performers.

For starters, new employees and new supervisors almost always serve in a probationary capacity for one or two years. During that time, they can be fired with no advance notice and very limited or no right of appeal, depending on the position.  (For more, click here.)

Do hiring managers at your agency use the probationary period as intended? What situations have you seen where proper use of probation would have eliminated a performance or disciplinary problem before it mushroomed?

 

OPM’s Guidance on Firing Bad Employees Will Remind You That It’s Complicated

The Office of Personnel Management on Wednesday reminded federal managers that they have several tools at their disposal to discipline poor performers or employees engaged in misconduct.

OPM released 22-page guidance — not intended to be “comprehensive” — outlining the various disciplinary procedures for Title 5 employees, depending on whether the issue is performance-related, or a result of misconduct. The guidance walks agencies through the proper steps, including notification and documentation, required for suspending, reassigning, demoting and firing employees and members of the Senior Executive Service.

“Maximizing employee performance and addressing misconduct, when appropriate, is a critical responsibility of managers and supervisors,” wrote acting OPM Director Beth Cobert in an accompanying memorandum. “If the available management tools are used appropriately and when needed, managers and supervisors have an opportunity to deter future performance or misconduct challenges, and employees have an opportunity to improve their performance or correct their behavior, all of which will benefit the agency.”

The OPM guidance, as government documents go, is pretty informative and jargon-free. But the guidance, which outlines an extensive process for many disciplinary actions, also is a … (For more, click here.)

Have you ever been involved in having to deal with misconduct or poor performance? What tips would you have for others having to do the same?

Beware Attempting to Fix a Difficult Employee

New(er) managers often step all over this issue of fixing people. I know I did. Twice. Both situations ended in disasters. The lesson: it’s never your job to fix a difficult employee.

It turns out that regardless of your great intentions, powers of moral suasion, and investment in time, sweat, and tears, you cannot fix a person. The individual in question has to want to change. You can set the stage and provide the opportunities, but you have a lot less influence on this situation than you might think. (For more, click here.)

Do you agree with what the author says he should have done in the case he describes? Do you agree with his statement that “You are not in the business of fixing people. You are accountable for driving results.”?