Weingarten Rights when under investigation by the USPS
Q & A Weingarten Rights
Your Rules and rights for Union
Meetings, absent specific language
in your local, state or national
constitutions.
YOUR RIGHTS TO: THE
GRIEVANCE PROCEDURE,
WINEGARTEN RIGHTS, HATCH
ACT (POLITICAL ACTIVITIES)
EEO, AND MIRANDA RIGHTS
ARTICLE 15
GRIEVANCE-ARBITRATION
PROCEDURE
Section 1. Definition
Ask for a Steward!
If you are ever asked to go with someone in management or with the inspection service, you need to ask for a union steward!
Once you are in a meeting or discussion with someone in managment you need to make the following statement to them:
"If this discussion could in any way lead to my being disciplined or terminated, or affect my presonal working conditiions, I request that my union representative, officer, or steward be present at the meeting. Without representation, I choose not to answer any questions."
Before you Talk!
If the Postal Inspectors or Office of Inspector General (OIG) Agent wants to talk to YOU!
Ask for a union steward before you say anything to them!
Weingarten Rights
| EMPLOYEE'S RIGHT TO UNION REPRESENTATION
The right of employees to have union representation at investigatory interviews was announced by the U.S. Supreme Court in a 1975 case (NLRB vs. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689). These rights have become known as the Weingarten rights.
Employees have Weingarten rights only during investigatory interviews. An investigatory interview occurs when a supervisor questions an employee to obtain information which could be used as a basis for discipline or asks an employee to defend his or her conduct.
If an employee has a reasonable belief that discipline or other adverse consequences may result from what he or she says, the employee has the right to request union representation. Management is not required to inform the employee of his/her Weingarten rights; it is the employees responsibility to know and request.
When the employee makes the request for a union representative to be present management has three options:
(I) it can stop questioning until the representative arrives.
(2) it can call off the interview or,
(3) it can tell the employee that it will call off the interview unless the employee voluntarily gives up his/her rights to a union representative (an option the emplovee should always refuse.)
Employers will often assert that the only role of a union representative in an investigatory interview is to observe the discussion. The Supreme Court, however, clearly acknowledges a representative's right to assist and counsel workers during the interview.
The Supreme Court has also ruled that during an investigatory interview management must inform the union representative of the subject of the interrogation. The representative must also be allowed to speak privately with the employee before the interview. During the questioning, the representative can interrupt to clarify a question or to object to confusing or intimidating tactics.
While the interview is in progress the representative can not tell the employee what to say but he may advise them on how to answer a question. At the end of the interview the union representative can add information to support the employee's case.
On June 15, 2004, The National Labor Relations Board ruled by a 3-2 vote that employees who work in a nonunionized workplace are not entitled under Section 7 of the National Labor Relations Act to have a coworker accompany them to an interview with their employer, even if the affected employee reasonably believes that the interview might result in discipline.
This decision effectively reversed the July 2000 decision of the Clinton Board that extended Weingarten Rights to nonunion employees.
|
EEO
ORAL HEARING OR FINAL AGENCY DECISION? (9/26/07)
By J.R. Pritchett, POSTAL EMPLOYEE ADVOCATE
September, 2007
|
Whenever a federal employee finds that they may have been the victim of unlawful discrimination, they find themselves having to navigate through a complex and technical EEO administrative process in order to prove that they were discriminated against.
So here's my view on how the system currently works. You have to make sure that you contact a Postal Service EEO Counselor within 45-days of the date of the act, policy or practice that you allege is discriminatory. If you are even one (1) day late your complaint will be dismissed as untimely. [At the time of this article employees can contact the Postal Service's National Equal Employment Investigative Services Office (NEEOISO) in Tampa, Florida at 888-336-8777.] You have to make certain that you properly identify the type or basis of your complaint of discrimination (race, color, national origin, age, sex, religion, disability, or reprisal for prior protected EEO activity). The Postal Service prefers to use their own forms (though it is not mandatory that you use them) which leave you little space to fully describe everything that is requested. This is either intentional, or was created by someone with an inability to anticipate that some people don't write in eight-point font.
If you don't agree to REDRESS mediation, or otherwise agree to extend the informal complaint period, within 30-days of when you filed the informal complaint, you should receive a Notice of Right to File a Formal Complaint. There doesn't seem to be any consequences to the Postal Service if they miss their time limits.
Once you file your formal complaint (don't forget about those pesky time limits) you then wait to find out how NEEOISO will frame or describe your complaint. They will also advise you what issues they agree to accept for investigation and what issues will be dismissed. Yes, you can write back within ten (10) days and disagree, but other than that, you have no recourse except to place your objection on the record. The accepted issues are assigned to a contract investigator (many who are retired Postal Service managers), who will send you copious questions that you must answer in affidavit form. Though s/he likely won't ask, you should take advantage of this opportunity by entering additional testimony related to the issues that were dismissed.
After struggling to get sufficient time on-the-clock from your supervisor to properly respond to the affidavit questions, you again wait for a copy of the Report of Investigation (ROI). The file (usually a proper government pale-green) is supposed to reflect an unbiased compilation of evidence related to your complaint, without drawing any conclusions or opinions. The ROI not only contains your affidavit, but should also contain the affidavit(s) of the individual(s) who were named as being responsible for the discriminatory act; exhibits of relevant documents; and a summary of the evidence contained therein.
A cover letter should accompany the ROI advising you of several options regarding how to proceed. A.) Take no action at all and within forty (40) days the Postal Service must provide you with a copy of its Final Agency Decision (FAD). B.) You can specifically request an FAD. (Don't get your hopes up that the Postal Service will find that they discriminated against you). C.) You can also submit a Request to Withdraw your Complaint (something that you've just waited all this time to do - insert thick sarcasm here). Your final option is, D.) you can ask for an Oral Hearing before an EEO Commission Administrative Judge (finally, you think to yourself - someone who doesn't work for the Postal Service). Generally, a form is enclosed to use to request a hearing, which instructs the complainant to send their request directly to NEEOISO (which is a Postal Service office). There is no prohibition (in fact a preference) to send requests for a hearing directly to the EEO Commission District or Field Office indicated in the cover letter, via Certified Mail. Send a courtesy copy of your request to NEEOISO. Once an AJ has been assigned and you receive an Acknowledgement Order you have new procedural requirements, along with varying imposed time limits. When engaging in discovery, you must do so within twenty (20) days of the date of the Order. Discovery is very important because it's FINALLY your (only) opportunity to request information, documents, and other responses from the Postal Service in order to supplement the ROI. When it's clear that the investigator compiled information or evidence that favors management, or was weak in supporting your case, then you have to gather sufficient information that favors your claim of discrimination. This can include obtaining depositions and/or affidavits from responding management officials (RMO's) and other witnesses. (Make sure that you're doing all this stuff on-the-clock, folks.)
Within thirty (30) days of the Acknowledgement Order you must submit any Motion to Amend your complaint. This is your opportunity to submit your arguments to the AJ why issues that had been dismissed, should be reinstated as an issue before the Commission. The most persuasive argument occurs when you can show that the reason(s) given for the dismissals were improper or not in accordance with law. At the conclusion of discovery, which is usually only a sixty (60) day window, your next major hurdle occurs when the Postal Service files a Motion for a Decision without a Hearing - also know as Summary Judgment. If the Postal Service doesn't file the motion fast enough for the AJ, you can expect a notice from him/her called a Notice of Intent to Issue a Decision without a Hearing. Of course judge's love this little legal maneuver because it gets the complaint off of their desk without them having to actually fully investigate your allegations of discrimination. So you find yourself arguing again that there is significant dispute of the material facts that should entitle you to a hearing. After all, what other reason would motivate you to submit yourself to this tedious, stressful, time-consuming, demanding, costly, and overly complicated and technical process?
If you find yourself to be one of the few "lucky ones" (and I don't mean it in a cavalier way) and the AJ finds that Summary Judgment would not be appropriate, you may finally get "your day in court". You might feel like this is the pinnacle of your achievement - the opportunity for someone to finally hear your side of the story. Not to burst your bubble, but overwhelmingly AJ's rule in favor of the employing agency.
If your complaint has not been bifurcated (separates the evidence on liability from the evidence on damages), then during the hearing you will also be expected to produce evidence and testimony regarding your claim for damages. This process especially can be extremely stressful and personally intrusive. And more often than not, damage awards rarely fully compensate what the complainant experienced. There are no punitive damages available in the federal sector - which would be the only sensible method to deter the Postal Service from its institutional behavior. Also, you cannot be compensated for the stress experienced or caused by the litigation process itself - you can only be compensated for the consequences of the discriminatory act, policy or practice.
Even if the AJ rules in your favor, it's likely that the FAD (which must be generated after the AJ's decision) will conclude that the Postal Service did not discriminate. After all, what motivation would the Postal Service have to find against itself? Nevertheless, you need this absurd piece of paper (the FAD) to either appeal to the EEO Commission in Washington, D.C., or to take the matter to Federal District Court. The FAD becomes your evidence that, as a federal employee you have exhausted your administrative remedies (which surely have exhausted you).
If you appeal to the EEO Commission, and your complaint has been adjudicated by an EEOC AJ, the Commission is not going to feel particularly motivated or compelled to look very closely at the issues raised in your complaint. After all, the EEOC defers to AJ's who have heard the testimony, reviewed the evidence, and ostensibly applied all of the relevant and applicable standards of law. Certainly you make your argument that the AJ erred in his/her decision, with regard to evidence in the record, credibility determinations, and application of law, but unless those errors essentially leap off the page and get the Commission's attention, deference is usually conferred on the AJ.
Assuming the Commission rules against you; it's at least more than a year since the discriminatory act occurred; you've spent money, time, and (likely emotional) effort trying to persuade anyone that will listen that you've been unfairly treated and the victim of unlawful discrimination. And now your remaining choice is to go to Federal District Court. Is the adverse action that you filed your complaint about still relevant? Are witnesses still available? For that matter, can any of the witnesses remember what happened so long ago?
The obvious cynicism and sarcasm about this process is directly related to the failure of this process to effectively recognize and/or deter discriminatory conduct. It's a system that inherently favors the employing agency and is insufficient to impose any meaningful consequences to the Postal Service.
However, because it's the only process available to federal employees, there are some tactical considerations that employees should consider. Specifically, after you have engaged in discovery and had the opportunity to fully develop the record, you may want to consider withdrawing your request for a hearing, and instead ask for a Final Agency Decision.
Why? For several reasons. First, and probably most importantly, in your appeal of the FAD you don't have to make any arguments to counter an AJ's findings. The EEOC is more likely to look more closely at a complaint where the Postal Service has declared that it did not discriminate against you (which they almost always say). There's no judge to have to give deference to - someone who is assumed to be non-biased. The Postal Service however, is not endowed with that expectation. When the AJ notes for the record that you have withdrawn your request for a hearing and have asked for an FAD, there's not usually much delay in returning the complaint file to NEEOISO. At that point, even the Postal Service Law Office doesn't usually pursue the complaint. So instead of the Postal Service attorney's arguments being considered and/or incorporated into the opinion of the FAD, it's all done by postal managers at NEEOISO. Your arguments presented on appeal, can now include detailed evidence obtained during discovery, including official Postal Service documents (policy letters, emails, etc.) written affidavits and/or transcripts of depositions. NEEOISO may not even be aware of this evidence when they write the FAD. Such an advantage just might provide the edge needed to convincingly persuade OFO that the articulated reasons provided by the Postal Service are pretextual and intended to masque, hide, or otherwise conceal discriminatory conduct or animus.
Now you are left with a tactical decision to make. Should you take the chance that an AJ will issue a Summary Judgment decision; which would either prevent, or extensively delay your opportunity for a hearing, just so you can have your "day in court"? You might still get that day in court if OFO remands your appeal back to the original EEO Office for a hearing. If it's reassigned to the same AJ, do you think s/he would be inclined to embrace evidence that would show that their prior conclusions were erroneous?
It may be that you have more than sufficient evidence where an AJ might have no other alternative but to find that discrimination occurred. Cases like that do still exist. But where the overwhelming majority of EEO complaints fall prey to Summary Judgment, a tactical method of avoiding it should be given serious consideration.
Mr. J.R. Pritchett is an Administrative Law Representative with POSTAL EMPLOYEE ADVOCATES, who are not attorneys. The above article has been prepared for educational and informational purposes only. It does not constitute legal advice or legal opinions and should not be construed as such. Readers should not act upon this information without first seeking professional legal counsel. The opinions expressed in this article are those of the author, and not those of the Internet host or its sponsors. You may contact at postalemployeeadvocate@juno.com.
|
|
GRIEVANCE-ARBITRATION
PROCEDURE
Section 1. Definition
Miranda Warning
The Miranda warning is a police warning that is given to criminal suspects in police custody in the United States before they are asked questions relating to the commission of crimes. Police may request biographical information such as name, date of birth and address without reading suspects their Miranda warnings. Compulsory confessions will not constitute admissible evidence unless suspects have been made aware of and waived their "Miranda rights".
The Miranda warnings were mandated by the 1966 United States Supreme Court decision in the case of Miranda v. Arizona as a means of protecting a criminal suspect's Fifth Amendment right to avoid coercive self-incrimination (see right to silence). However, since its creation by the Warren Court, the Supreme Court has indicated that the Miranda decision imposes preventative safeguards rather than protections mandated by the Fifth Amendment privilege.
Miranda rights
The Supreme Court did not specify the exact wording to be used when informing a suspect of his or her rights. However, they did set down a set of guidelines which must be followed. The ruling states:
...The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with an attorney and to have that attorney present during interrogation, and that, if he is indigent, an attorney will be provided at no cost to represent him.
As a result, American English has acquired the verb Mirandize, meaning to read to a suspect his or her Miranda rights (when that suspect is taken into custody for the purpose of interrogation).
Typical Miranda warning
Though every U.S. jurisdiction has its own regulations regarding what, precisely, must be said to a person when they are arrested, the typical warning is as follows:
You have the right to remain silent. If you give up that right, anything you say can and will be used against you in a court of law. You have the right to an attorney and to have an attorney present during questioning. If you cannot afford an attorney, one will be provided to you at no cost. During any questioning, you may decide at any time to exercise these rights, not answer any questions, or make any statements.
The courts have since ruled that the warning must be "meaningful", so it is usually required that the suspect be asked if he understands his rights. Sometimes, firm answers of "yes" are required. An arrestee's silence is not a waiver. Evidence has been ruled inadmissible because of an arrestee's poor knowledge of English and the failure of arresting officers to provide the warning in the arrestee's language.
Also because of various education levels, officers must make sure the suspect understands what the officer is saying. It may be necessary to "translate" to the suspect's level of understanding. Courts have ruled this admissible as long as the original waiver is said and the "translation" is recorded either on paper or on tape.
The right of a juvenile to remain silent without his or her parent or guardian present is provided in some jurisdictions.
|
A grievance is defined as a dispute, difference, disagreement
or complaint between the parties related to wages, hours, and
conditions of employment. A grievance shall include, but is
not limited to, the complaint of an employee or of the Union
which involves the interpretation, application of, or
compliance with the provisions of this Agreement or any
local Memorandum of Understanding not in conflict with
this Agreement.
The USPS does not determine if you have a grievance or not, the union makes that decision. If you believe your contractual rights have been violated, you have an absolute right to talk to a union steward. Do not let management tell you otherwise!.
You need to request a union steward, through your supervisor or postmaster and they are to contact the union. Once the union is made aware of the request, a meeting - via phone, Email or in person will be set up.
If you make a request for union representation, and have not been contacted by the union - in a reasonable time frame - you need to make that request again, and also call a union official.
A grievance is defined as a dispute, difference, disagreement
or complaint between the parties related to wages, hours, and
conditions of employment. A grievance shall include, but is
not limited to, the complaint of an employee or of the Union
which involves the interpretation, application of, or
compliance with the provisions of this Agreement or any
local Memorandum of Understanding not in conflict with
this Agreement.
The USPS does not determine if you have a grievance or not, the union makes that decision. If you believe your contractual rights have been violated, you have an absolute right to talk to a union steward. Do not let management tell you otherwise!.
You need to request a union steward, through your supervisor or postmaster and they are to contact the union. Once the union is made aware of the request, a meeting - via phone, Email or in person will be set up.
If you make a request for union representation, and have not been contacted by the union - in a reasonable time frame - you need to make that request again, and also call a union official.
|
