Indefinite Suspension: Criminal Misconduct

Overview | Key Points | Links

Overview

OPM regulations at 5 CFR 752.402(e) permit agencies to place employees on indefinite suspension pending the completion of investigation or criminal proceedings when the agency has reasonable cause to believe the employee has committed a crime for which the employee could be imprisoned. In using this procedure, however, agencies must meet the "reasonable cause" standard imposed by the MSPB and courts, and must terminate the suspension promptly upon completion of the event it identified when imposing the suspension; i.e., usually its own investigation or a criminal proceeding.

Key Points

These key-point summaries cannot reflect every fact or point of law contained within a source document. For the full text, follow the link to the cited source.

• Indefinite suspension means the placing of an employee in a temporary status without duties and pay pending investigation, inquiry, or further agency action. The indefinite suspension continues for an indeterminate period of time and ends with the occurrence of the pending conditions set forth in the notice of action that may include the completion of any subsequent administrative action. 5 CFR 752.402(e)
• To suspend an employee based on a contention that he may face imprisonment the agency must be able to prove: 1) it has reasonable cause to believe the employee has committed a crime that could result in a sentence of imprisonment; 2) the agency has provided a suspension terminating event (e.g., completion of its investigation) in its notice of suspension. Engdahl v. Department of the Navy, 90 FMSR 7011, 900 F.2d 1572 (Fed. Cir. 1990); Dunnington v. Department of Justice, 92 FMSR 7002, 956 F.2d 1151 (Fed. Cir. 1992); Schneider v. Social Security Administration, 102 LRP 31676 (Fed. Cir. 2002, unpublished).
• When imposing an indefinite suspension based on a belief that an employee has committed a crime for which he may be imprisoned, the agency must establish nexus and...

992 F.2d 180

143 L.R.R.M. (BNA) 2181, 125 Lab.Cas. P 10,663

William R. MOORE, Jr., Appellant,
v.
UNITED STATES POSTAL SERVICE, Appellee.

No. 92-3467.

United States Court of Appeals,
Eighth Circuit.

772 F.2d 905

120 L.R.R.M. (BNA) 3216

HERBERT ALLAH (SHABASS), PLAINTIFF-APPELLANT,
v.
UNITED STATES POSTAL SERVICE; NATIONAL POST OFFICE MAIL
HANDLERS, WATCHMEN MESSENGERS & GROUP LEADERS,
DIVISION OF THE LABORERS' INTERNATIONAL
UNION OF NORTH AMERICA,
AFL-CIO, DEFENDANTS-APPELLEES.

NO. 82-5630

United States Court of Appeals, Sixth Circuit.

8/22/85

Compensatory time off for travel is earned by an employee for time spent in a travel status away from the employee's official duty station when such time is not otherwise compensable.

Compensatory time off for travel may be earned by an "employee" as defined in 5 U.S.C. 5541(2) who is employed in an "Executive agency" as defined in 5 U.S.C. 105, without regard to whether the employee is exempt from or covered by the overtime pay provisions of the Fair Labor Standards Act of 1938, as amended. For example, this includes employees in senior-level (SL) and scientific or professional (ST) positions, but not members of the Senior Executive Service or Senior Foreign Service or Foreign Service officers. Effective April 27, 2008, prevailing rate (wage) employees are covered under the compensatory time off for travel provision.
(See CPM 2008-04.)

Compensatory time off for travel may only be earned for time in a travel status when such time is not otherwise "compensable." Compensable refers to periods of time creditable as hours of work for the purpose of determining a specific pay entitlement. For example, certain travel time may be creditable as hours of work under the overtime pay provisions in 5 CFR 550.112(g) or 551.422. (See fact sheet on hours of work for travel.)

To be creditable under this provision, travel must be officially authorized. In other words, travel must be for work purposes and must be approved by an authorized agency official or otherwise authorized under established agency policies.

For the purpose of compensatory time off for travel, time in a travel status includes�

• Time spent traveling between the official duty station and a temporary duty station;
• Time spent traveling between two temporary duty stations; and
• The "usual waiting time" preceding or interrupting such travel (e.g., waiting at an airport or train station prior to departure). The employing agency has the sole and ...

Excessive Absence

Overview | Key Points | Links

Overview

Excessive absenteeism can be defined as either a long-term continuous absence with no foreseeable end in sight or a pattern of frequent unplanned absences from work. The Merit Systems Protection Board and the courts have held that an employee's absence, by its very nature, adversely affects an agency's ability to accomplish its mission. Frequent and unscheduled absences, as well as prolonged absences from work with no foreseeable end, may form the basis for a proposed adverse action.

Key Points

These key-point summaries cannot reflect every fact or point of law contained within a source document. For the full text, follow the link to the cited source.

• Generally, if an agency approves leave for unscheduled absences, it cannot take an adverse action on the basis of those absences. There is an exception to this general rule where an employee makes excessive use of unscheduled leave without pay. Ryan v. Department of the Air Force, 107 LRP 58198, 107 MSPR 71 (MSPB 2007).
• An agency may take an adverse action based on excessive use of leave without pay where: 1) the record shows that the employee was absent for compelling reasons beyond her control so that the agency's approval or disapproval of leave was immaterial because the employee could not be on the job; 2) the absences continued beyond a reasonable time, and the employee was warned that adverse action might be initiated unless she became available for duty on a regular, full-time or part-time basis; and 3) the agency shows that the position needed to be filled by an employee available for duty on a regular, full-time or part-time basis. Cook v. Department of the Army, 84 FMSR 5013, 18 MSPR 610 (MSPB 1984); Holderness v. Defense Commissary Agency, 97 FMSR 5277, 75 MSPR 401 (MSPB 1997); Smisson v. Department of the Air Force, 100 FMSR 5225, 85 MSPR 427 (MSPB 2000); Combs v. Social Security Administration, 102 FMSR 5142, 91 MSPR 148 (MSPB 2002).
• An adverse action based on excessiv...

c. No Foreseeable End to Absence

An agency may terminate LWOP initially granted because of a job-related injury if, after the employee is determined by OWCP to have recovered from the injury, the employee does not return to work because of a personal physician's statement that the employee is still disabled and has no definite date for resuming work. See Newsome v. Dept. of Treasury, 10 MSPR 504, 505 (1982) (distinguishing Agnes v. USPS, 4 MSPR 176, 178-79 (1980) ("In Agnes, the agency removed the appellant for not reporting for duty, and the Board reversed the agency because it did not properly exercise its discretion in refusing to grant the appellant's request to be placed on LWOP status"; "Plainly Agnes is not a case involving an appellant whose absence is without a foreseeable end.")); see also Bologna v. Dept. of Defense, 73 MSPR 110, 114-15 (1997) (after OWCP discontinued benefits, an employee unsuccessfully argued that he should be carried on LWOP pending the completion of an OWCP appeal; the employee was properly removed when no indication of a foreseeable end to his absence was given; the absence was a burden to the agency because it hindered the accomplishment of its workload and placed an extra burden on the appellant's coworkers). If worker's compensation is approved only to a certain date and the employee fails to return to work or submit medical information justifying a continuing absence, despite notice from the agency, the removal is then taken because the appellant is unavailable for work or AWOL, not because he is physically unfit for duty (assuming there is no evidence regarding continued fitness); Johnson v. GSA, 46 MSPR 630, 635 (1991) (also noting that the agency's temporary approval of LWOP of an appellant, pending OWCP determination, did not preclude the agency from correcting leave status based on later information, citing FPM Ch. 630, Subch. 1-6). [See discussion earlier in this chapter under the headings "Unscheduled but Approved Absences Following Failu...

ADVERSE ACTIONS: THE BASICS

Major Topics

- MSPB Jurisdiction

- Minor Disciplinary Actions

- Adverse Actions

- Employees with Appeal Rights

- Process and Procedural Requirements

I. INTRODUCTION

This text deals with the charges and penalties that are brought against employees in adverse actions. The adverse action is the most significant remedial tool for regulating work-related conduct, e.g., misconduct and related problems (such as inability to perform).

Since the first edition of this text, the law on both charges and penalties has changed considerably. Flashing yellow lights, if not red lights, now slow down or substantially put the brakes on charge recharacterization and penalty mitigation. An agency may now charge in the alternative (e.g., insubordination or failure to follow instructions) and freely use alternative charges (e.g., making remarks that cause disruption and anxiety in the workplace instead of "threat"). Agencies may also freely use generic charges (e.g., "misconduct") or simply narrative charges (the specification without a label); the difference between the general charge and the narrative charge is simply a matter of form and both are in substance the specification. When agencies charge in the alternative, use alternative charges, or use general or narrative charges, there is no longer a certain penalty trade off. Today, the penalty analysis stands, roughly put, on its own feet, and it is possible to get an "intent penalty" off of a non-intent charge ("charging down and proving up").

Looked at in a somewhat different or less technical sense, the Merit Systems Protection Board (MSPB or Board) charging law has moved from what we could call its "gotcha" stage to a more sensible notice approach. Indeed, it made little sense when a agency would charge an employee with making personal long-distance telephone calls and the Board would hold the charge not proven because, as it turned out, the calls were local. After all, the essence of the misconduct was misuse and it would be hard to imagine that ...

Overview

An employee affected by an agency's unjustified or unwarranted personnel action is entitled to attorney's fees, and if appropriate, to back pay, under the Back Pay Act, 5 USC 5596. Many UUPAs are based on the agency's failure to follow the collective bargaining agreement. Violations include:

• Improper denial of a performance award.
• Method of filling of positions that violates past practice.
• Denial of overtime work.
• Denial of a promotion for which an employee is well qualified.

The agency's action must have resulted in the loss, withdrawal or reduction of the grievant's pay, allowances or differentials.

An award of attorney fees is warranted in the interest of justice if one of these is true:

1. The agency engaged in a prohibited personnel practice.
2. The agency's actions were without merit or wholly unfounded, or the employee was substantially innocent of the charges.
3. The agency's actions were committed in bad faith to harass or exert improper pressure on an employee.
4. The agency committed gross procedural error which prolonged the proceeding or severely prejudiced the employee.
5. The agency knew or should have known it would not prevail on the merits of the case.
6. There was either a service rendered to the federal workforce or there was a benefit to the public derived from maintaining the action.

Key Points

These key-point summaries cannot reflect every fact or point of law contained within a source document. For the full text, follow the link to the cited source.

• Under the "interests of justice" standard established in 5 USC 7701(g), a grievant must be determined to have been the prevailing party and the victim of an agency's UUPA to receive attorney's fees.
• Under in 5 USC 7701(g) the arbitrator must provide a "fully articulated, reasoned" decision as to whether attorney's fees are warranted, and if so, in what amount.
• Attorney's fees may be awarded under the BPA, 5 USC 5596, only if there is a finding that an UUPA resulted in a loss or withdrawal of pay, allowances or differentials, and the loss is remedied by an award ...

"Medical inability to perform" means generally an individual's inability to carry out the functions of a job because of a disabling physical or mental impairment, whether or not the impairment is job related. It may be, but is not necessarily synonymous with "disability" under EEOC regulations, under regulations of the Department of Labor governing workers' compensation, or under regulations of the Office of Personnel Management regarding retirement.

Key Points

These key-point summaries cannot reflect every fact or point of law contained within a source document. For the full text, follow the link to the cited source.

• In order to prove a charge of medical inability to perform, the agency must do more than merely show that the employee has an incapacitating medical impairment. It must establish a nexus between a physician's conclusion that an employee is disabled, and observed deficiencies in work performance or behavior--unless there is a "high probability of hazard" when the medical condition may result in injury to the employee or others because of the type of work the employee performs. Groshans v. Department of the Navy, 83 M.S.P.R. 629 (1995), 95 FMSR 5197; Spencer v. Department of the Navy, 73 M.S.P.R. 15 (1997), 97 FMSR 5004; Ellshoff v. Department of the Interior, 76 M.S.P.R. 54 (1997), 97 FMSR 5348.
• Employees may be required to meet medical standards, including the need for medical certification, and may be removed from those positions for failure to meet the standards because of physical or mental conditions. Baker v. Federal Aviation Administration, 19 M.S.P.R. 370 (1984), 84 FMSR 5117 (loss of medical certificate because of diabetes mellitus requiring insulin); Lassiter v. Department of Justice, 60 M.S.P.R. 138 (1993), 93 FMSR 5493 (Deputy U.S. Marshal's medical inability to carry weapon because of delusional paranoid disorder).
• If a position has physical requirements, an agency may take action based on the employee's physical inability to meet these requirements. The agency must show that: 1) the medi...

0-AR-4468

Ruling

Arbitrator Sam Vitaro determined that a law enforcement officer who worked during mealtimes in the 1990s was entitled to 2,361 hours of overtime under the Fair Labor Standards Act.

Meaning

The arbitrator noted that the employee documented that he performed work during the meal periods. Thus, his scheduled meal periods during that time counted as hours of work, making the agency's calculation of 2,061 hours inaccurate.

Case Summary

The parties had a long-running dispute over whether the agency improperly exempted bargaining unit employees from FLSA coverage. The arbitrator previously determined that several workers were entitled to back pay. The parties disagreed over the number of hours that should be credited to one particular employee, a law enforcement officer who allegedly worked during lunch breaks in the 1990s. The union claimed that the employee was entitled to 2,361 hours. The agency calculated 2,061 hours, asserting that the employee wasn't entitled to full credit for certain meal period hours before he was covered by administratively uncontrollable overtime in 1992. The agency contended that for workers not covered by AUO, scheduled meal periods can only be considered hours of work if work is actually performed. The arbitrator noted that the employee documented that he performed work during those meal periods. Consequently, he was entitled to the higher figure of 2,361 hours.

Other claimants in the action asserted that they did not receive checks for overtime payment. However, the agency asserted that it sent the checks, and provided copies of the front and back of a cashed check. The arbitrator concluded that the agency met its obligation toward these claimants.

Judge / Administrative Officer

Vitaro, Samuel A.

Full Text

Reassignment is the noncompetitive change of an employee from one position to another without promotion or change to a lower grade, level or band. The position may be in the same or a different competitive level, competitive area, or local commuting area, as long as the agency finds it has a need for the employee in the vacant position. Unless an agency has a policy or collective bargaining agreement limiting management's right to reassign, it can reassign an employee without regard to veterans' preference, length of service, or performance ratings.

These key-point summaries cannot reflect every fact or point of law contained within a source document. For the full text, follow the link to the cited source.

Applicable statutes and regulations

�         Management's right to reassign employees is based on statutory authority codified at 5 USC 7106.

�         Reassignment is defined as "a change of an employee, while serving continuously within the same agency, from one position to another without promotion or demotion." 5 CFR 210.102(b)(12).

�         For regulations covering reassignment of competitive service employees, see 5 CFR 335.102. For regulations covering reassignment of excepted service employees, see 5 CFR 302.102(a).

�         For statutory authority covering reassignment of Senior Executive Service employees, see 5 USC 3395 and 5 USC 4314. For regulations covering reassignment Senior Executive Service employees, see 5 CFR 317.901 (career appointments) and 5 CFR 317.604 (noncareer and limited appointments).

General

�         It is management prerogative to reassign an employee to another position at the same grade within or to another local commuting area. The agency must have a legitimate management need for the reassignment and the employee must qualify. Reassignment regulations give an agency extensive flexibility in reassigning an employee to a different position.

�         Courts have held that agencies have wide discretion in exercising their authority to reassign employees. ...

Active listening. When you listen actively, you don't interrupt. You empathize with the speaker, ask questions, show interest and concentrate on what is being said. Active listeners react nonverbally to the discussions of others by nodding, maintaining eye contact and leaning forward.

Actual expense method. Reimbursement of employee subsistence expenses while on TDY or otherwise performing duty away from the permanent duty station. Based on receipts for expenses actually incurred. Agencies may allow as alternative to per diem reimbursement. Capped at 300 percent of allowable per diem rate.

Absolute standard. A performance standard that requires perfect performance. That is, it would be necessary to perform at a level that would not allow any room for any improvement in order to attain a satisfactory rating. With certain exceptions for vital health, safety or security matters, absolute standards did not pass MSPB review after 1984. However, they are now permitted under a March 2004 ruling by the U.S. Court of Appeals, Federal Circuit, Guillebeau v. Department of the Navy, 104 LRP 13104. Like all other standards, they must be reasonable, based on objective criteria, and communicated to the employee in advance.

Acceptable level of competence. ALOC certifies that an employee is performing at a sufficiently satisfactory level to justify a within-grade (step or WIGI) increase in base pay.

ADA. Americans with Disabilities Act. A law governing treatment of people with disabilities. It's employment sections are aimed primarily at private sector employers. Nonetheless, the ADA contains provisions that have significantly altered the manner in which the courts and the EEOC and MSPB have interpreted and applied agency obligations to provide "reasonable accommodation" to employees with disabilities. EEOC regulations interpret the Rehabilitation Act using the language of the ADA.

Administrative excusal. Administrative leave. Agencies can provide administrative excusal to employees in a wide variety of circumstances. Employees ...

IN FOCUS: The Federal Labor Relations Authority upheld a decision of its regional director denying the union's petition seeking to represent a unit of individual contractors. The FLRA concluded that the individuals the union sought to represent do not meet the definition of "employee" contained in 5 USC 7103 (a), in International Broadcasting Bureau, Broadcasting Board of Governors and AFGE Local 1812, 108 LRP 70949 , 63 FLRA 42 (FLRA 2008).

While not dissenting from the final outcome, Thomas Beck, who was FLRA chairman at the time of the decision, issued a separate opinion in the case. He opined that the definition of employee in 5 USC 2105 is an element of, and predicate to, the Section 7103 definition of employee.

_____________________________________________________________________________

Also on cyberFEDS�:

• Quick Start Guide: Bargaining Unit Determination
• Quick Start Guide: Bargaining Unit Exclusions
• New FLRA chairman issues 1st separate opinions (01/08/09)
• FLRA sends Pentagon police decision back to regional director (10/11/07)

_____________________________________________________________________________

Vendors were under contract

The union sought to represent a separate unit of vendors who each had an individual contract to provide video editing services to the government. The union conceded to the agency's assertion that the individuals do not meet the definition of "employee" contained in 5 USC 2105 (a), requiring civil service status. However, the union claimed that the term "employee" used in the labor relations statute at 5 USC 7103 (a) only requires that individuals be employed by an agency. According to the union, each of the contractors meets that requirement.

Relying on Sections 7101 and 7102, the RD determined that the statute guarantees employees of the federal government "in the civil service" the right to organize and bargain collectively. The RD also considered the three requirements of Section 2105(a) for individuals to meet the definition of "employee," and noted the union's agreement that ...

Wordiness works against you when framing charges

By Melissa Turley

cyberFEDS� Washington Bureau

ASK THE EXPERT: WASHINGTON -- Human resources staff must take a delicate approach to formulating charges. Otherwise, they may bite off more than they can chew, warns employee relations expert Marilyn Mattingly.

"Stay away from legalese, because you'll have to prove a legal definition," she said.

One recent case, Valenzuela v. Department of the Army, 107 LRP 73370 (MSPB 12/21/07) illustrates the consequences of wordiness. This employee's removal was based on two charges: 1) absence without leave for 137.5 hours and failure to follow leave procedures and 2) providing false or misleading information that was not consistent with medical documentations as reasons for not being at work.

"If the agency would have just used 'misleading' instead of 'false,' it would have won and not had to prove the intent part," Mattingly said. "Also, the second charge was way too wordy. The agency should have just used 'providing incorrect information' and put the second part of the charge in the specifications."

Mattingly shared other do's and don'ts in an interview with cyberFEDS�.

_____________________________________________________________________________

Also on cyberFEDS�:

• Make discipline stick by properly framing charges (11/27/07)
• Take a conservative approach to framing disciplinary charges (07/27/06)
• How precise must an agency be when framing charges? 10/05/06)
• Checklist Plus+: Framing Charges
• MSPB Charges and Penalties, A Charging Manual

_____________________________________________________________________________

What language should be used to make a charge stick?

There are three components to a charge:

1. Name.
2. Elements. Every word you add to a charge has to be proven by a preponderance of the evidence. When you say "false" you must prove it.
3. Specifications of charge. The facts are supported by the evidence and prove every word of the charge.

One method agencies such as the U. S. Postal Service are using is more general charges. For exa...

How should supervisors handle 'insubordinate' employees?

By Herb Levine

cyberFEDS� Correspondent

IN FOCUS: Nothing makes a supervisor angrier than employees who refuse or fail to carry out orders -- unless it's the ER specialist who tries to explain that an employee's conduct cannot justify immediate removal for "insubordination."

What do the supervisors you support need to know about insubordination and lesser charges? The right explanations might make your next insubordination crisis easier to handle, and even prevent some future crises.

_____________________________________________________________________________

Also on cyberFEDS�:

• Wordiness works against you when framing charges (01/30/08)
• Understanding terminology is the key to successfully framing charges (10/29/07)
• Refusal to cooperate merits exception to 'obey now, grieve later' rule (10/26/07)
• Disrespecting a supervisor: Insubordination or just discourtesy? (08/09/06)
• Take a conservative approach to framing disciplinary charges (07/27/06)
• QSG: Failure to Follow Instructions
• QSG: Insubordination

_____________________________________________________________________________

A legal definition

The legal definition of insubordination, said William Wiley, a director with the Federal Employment Law Training Group in San Francisco, is "intentional refusal to obey a legitimate order." There are a number of problems that can come up when this definition is applied to specific instances of misconduct. The biggest, he said, is proving intent.

Typically, Wiley said, employees claim miscommunication. Employees say they misunderstood the timing of the order or the supervisor's expectations. They may insist that the order was not clear.

Even when there is no miscommunication, timing is still important. What may feel like insubordination is not, Wiley said, if the order is eventually obeyed.

There is also the question of legitimate authority to give an order, he said. He suggested advising supervisors to take care of this problem in advanc...

The matters enumerated in 5 USC 7106(b)(1) are generally referred to as the permissive topics for bargaining. These are:

• The numbers, types and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty; and
• The technology, methods and means of performing work.

An agency may elect to negotiate over the substance of union proposals addressing these matters or it may lawfully refuse to bargain. There is considerable overlap between the permissive scope of bargaining and the nonnegotiable management rights contained in Section 7106(a). Where a proposal concerns a permissive matter and at the same time affects the exercise of a management right, it is viewed as permissive because Section 7106(b)(1) was intended as an exception to Subsection (a).

Permissive bargaining extends beyond the scope of Section 7106(b). For example, an agency may, but does not have to, negotiate over the manner in which it fills supervisory positions. A union may, but is not required to, negotiate a waiver of a statutory right.

A party has the unilateral right to terminate a permissibly negotiable agreement upon expiration of the agreement.

Key Points

These key-point summaries cannot reflect every fact or point of law contained within a source document. For the full text, follow the link to the cited source.

The basics

• Because Section 7106(b)(1) is an exception to Section 7106(a), an arbitrator's award enforcing an agreement made under Subsection (b)(1) will not be disturbed even though it affects a management right contained in Subsection (a). Federal Aviation Administration, Alaskan Region, 107 LRP 38321, 62 FLRA 90 (FLRA 2007).
• A contrary to law exception will not be applied to an arbitrator's award enforcing a provision concerning a permissively negotiated matter. Instead, the question is one of contract interpretation subject only to an essence of agreement analysis. Internal Revenue Service, 105 LRP 55140, 61 FLRA 377 (FLRA 2005).
• When the parties have reached agreement on a matter within th...

BEST PRACTICE: WASHINGTON -- Annual leave should not be abused by federal employees, because it is only granted at the discretion of management, according to Larry Ables, employee relations team leader at the Department of Veterans Affairs.

"If you suspect abuse, tell them about it," Ables said during a session at the sixth annual Federal Workers' Compensation Conference. "Don't slam them after you let them do it for months."

Ables said many instances of leave abuse occur because of management and employee confusion about which type applies for certain events.

_____________________________________________________________________________

Also on cyberFEDS®:

• Frequently absent employee is not qualified for SSA position (07/22/04)
• Agency won't compensate grievant for on-call time (07/22/04)
• Supervisor retaliates by denying annual leave (06/25/04)
• Employees are entitled to annual leave, but management has a stake (06/15/04)
• Is 'presenteeism' hurting your agency's bottom line? (05/20/04)

_____________________________________________________________________________

The main types of leave are:

• Annual leave. Requested in advance and granted at a supervisor's discretion. There is also emergency annual leave that must be requested as soon as possible and within two hours of an employee's start time.
• Sick leave. Should be used when an employee is sick or "incapacitated for duty," for medical appointments and may also be scheduled in advance. Supervisors should grant "appropriate absences" and ask for documentation if an employee is out three or more days.
• Advanced sick leave. Requires a written request from employee and acceptable medical certification. It can be granted for up to six weeks (240 hours) and the employee "must have a zero sick leave balance." An employee can maintain an annual leave balance while out, but should file for disability retirement if he does not expect to return to work..
• Leave without pay. Must be requested and is at a supervisor's discretion. Documentation may also be required. An exces...

Weingarten is a short-handed term used to refer to a union's right to have a union representative present, at a bargaining unit employee's request, during "investigative interviews" that could lead to disciplinary action against the employee. The term Weingarten is drawn from a private sector decision, NLRB v. J. Weingarten, Inc., 420 U.S. 252 (1975). The specific right of federal employees to union assistance during investigative interviews is rooted and spelled out in 5 USC 7114(a)(2)(B).

Key Points

These key-point summaries cannot reflect every fact or point of law contained within a source document. For the full text, follow the link to the cited source.

The basics

• An exclusive representative shall be given the opportunity to be represented at any examination of an employee by a representative of the agency in connection with an investigation if the employee reasonably believes the examination may result in disciplinary action and the employee requests representation. 5 USC 7114(a)(2)(B).
• Upon receiving a request for representation during an investigative interview that an employee reasonably believes could result in discipline, the agency has 3 choices: 1) grant the request; 2) discontinue the questioning; or 3) offer the employee the choice of continuing without a union representative present or foregoing the benefit of continuing the interview. Metropolitan Correctional Center, New York, 27 FLRA 874, 87 FLRR 1-1303.
• Each agency must annually inform its employees of their rights to representation during investigative interviews. 5 USC 7114(a)(3).
• Union proposals that employees have the right to remain silent in investigative interviews that may lead to disciplinary action interfere with an agency's right to discipline and direct employees. Corps of Engineers, Kansas City District, 21 FLRA 233, 86 FLRR 1-1520.
• The right to union representation includes both criminal and non-criminal investigations. IRS, Jacksonville District, 23 FLRA 876, 86 FLRR 1-1831.

Examinations/interviews

• The term "examination" is synonym...

Formal discussion is a term contained in the Federal Service Labor-Management Relations Statute at 5 USC 7114(a)(2)(A). It refers to meetings held by representatives of agency management with bargaining unit employees concerning grievances, personnel policies or practices or general conditions of employment. When such meetings are held it is the responsibility of management to notify the union in advance and give it an opportunity to attend and participate.

These key-point summaries cannot reflect every fact or point of law contained within a source document. For the full text, follow the link to the cited source.

The basics

• An exclusive representative of an appropriate unit is entitled to the opportunity to be represented at any formal discussion between one or more representatives of an agency and one or more bargaining unit employees concerning any grievance, personnel policy or practice, or other general condition of employment of unit employees. 5 USC 7114(a)(2)(A).
• The purpose of the formal discussion provision is to give the union the opportunity to safeguard both its own institutional interests and the interests of bargaining unit employees. Border Patrol, El Paso, 93 FLRR 1-1063.
• The term "discussion" is viewed as synonymous with "meeting." Consequently, dialogue between the management and bargaining unit attendees is not necessary for a determination that the meeting was a formal discussion. Pension Benefit Guaranty Corporation, 62 FLRA No. 48, 107 LRP 67511. FCI, Bastrop, 96 FLRR 1-1048.

What qualifies?

• To qualify as a formal discussion a meeting must include four specific elements. They are: a) at least one representative of agency management and at least one bargaining unit employee in attendance; b) a discussion, that is c) formal in nature, and d) concerns either a grievance or a personnel policy, practice, or other condition of employment of unit employees. GSA, Region 9, 94 FLRR 1-1005.
• Conversations conducted by telephone may qualify as formal discussions. SSA, Office of Hearings and Ap...