Weingarten Rights

Weingarten Rights

Right to Union Representation for Bargaining Unit Employees of the US Border Patrol

In 1975, the U.S. Supreme Court ruled that Federal employees have the right to union representation at investigative interviews. NLRB vs. Weingarten, Inc. 420 U.S. 251. These rights have become known as the Weingarten rights.

The U.S. Supreme Court held that, under the National Labor Relations Act (NLRA), employees have the right to union representation at an interview when the employee reasonably believes his or her statement may result in disciplinary action.[1]

An interview occurs when the Service 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. This interview not only applies to verbal communication but also to any kind of self-documenting that may be requested by the Service that could be self incriminating (i.e. memorandums.)

If an employee has a reasonable belief [2] that discipline or other adverse consequences may result from the discussion, the employee has the right to request union representation. Management is not required to request union representation under Weingarten rights for the employee; it is the employee’s responsibility to request it.

Protection under Weingarten is afforded when two conditions are met:[3]

[1] Section 7, 29 U.S.C. 157 of the NLRA Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3)

[2] 195 N. L. R. B. 197, 198 n. 3. In NLRB v. Gissel Packing Co

[3] Further supported by the Collective Bargaining Agreement between the Immigration and Naturalization Service and the National Border Patrol Council, Article 31, Section B (1)

1. An employee reasonably believes that disciplinary action may be the result of his/her examination.

2. The employee requests representation.

Both conditions have to be met for the employee to invoke his Weingarten rights.

What are some situations where an employee could invoke his/her Weingarten rights?

1. A meeting with one of the Service’s representative in an administrative investigative interview. Who are our employer’s representatives?

a. Office of Internal Affairs (Administrative cases)

b. Office of Professional Responsibility (Administrative cases)

c. Office of Inspector General (Administrative cases)

d. Management Inquiry

2. When a memorandum is requested by the Service to explain the employee’s actions or what he/she witnessed.

3. A meeting with management where an employee is expected to defend his/her conduct or furnish any kind of information that could lead to future discipline.

b. When the employee makes the request for a union representative to be present, management has three options:

1. 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 employee should always refuse.)

As always, if you have any questions regarding your rights, please contact one of your station’s union stewards.

Management – 2008

It is an unfortunate impression maintained by some members of the Service that the Union is an anti-management organization. Although it may appear at times that the endeavors of the Union are anti-management, combating management is not the purpose of the Union but rather a manifestation of our true purpose. That true purpose is to insure the continual fair treatment of the Agent.

We would like to address this article to the members of management who are exemplary in carrying out the Border Patrol mission. There are many characteristics that make a good leader and a number of supervisors possess it all.

Being able to communicate with one’s subordinates seems like common sense when considering a good leader; however, there are those who excel in this category. Supervisors who have these communication skills express ideas in a clear, positive, convincing way. They have tact and do not engage in the practice of spreading rumors. These supervisors are honest in their communication with both the Agents and other members of management. Agents feel like they can confide in such leaders in matters professional and personal.

It is sometimes the case that an apprehension is made in the last hours of AUO and the Supervisor is expected to stay at the station until his agents are completed with the processing. The management officials who handle this sort of development in a positive manner are a real asset, not just to the Border Patrol mission but the Agents as well. No one wants to stay away from their friends and family longer than they have to, but we are here to do a job. To that end, we greatly appreciate management who accepts and appreciates the work the Agents are doing.

Another one of the traits that seems to be abundant in some members of management is a true concern for the Agents. At a minimum, a supervisor should be aware of what their Agents are doing at work. But there are supervisors that are honestly interested in the well being of their subordinates. These supervisors make an active effort to assure that the Agents are safe. Good supervisors are willing to be mentors and guide agents. Whether it is work related or a personal issue, the supervisor always gives the impression that he/she is there for the Agents. They may risk the chance of alienating themselves amongst their peers and superiors but they do not sell out on their morals.

The final characteristic is, unfortunately, the one that the Union encounters the least. That characteristic is belief in justice. Working for an agency that used to be under the jurisdiction of the Department of Justice, it would make sense that everyone believed in this principle. Everyone should be treated the same under similar circumstances, whether they are Agents, members of management or close friends of the Chief. This is justice. Justice should not be confused with prosecution. It is not about making agents cut memos for vehicle damage and yet ignore the damage entirely when another supervisor does the same. Application of this principle, perhaps more than any other, is very much noticed by the Agents. Whether something is fair or not is the most common issue we stewards have brought to our attention. It goes past equal treatment in discipline. Fair selection to details, assignment of days off and other such behaviors are all ways that a good supervisor shows off his belief in justice.

To those members of management who bear these characteristics, we thank you. After all, we are an agency, and clearly you are aware that it takes Agents to make up an Agency.

Scheduling Conflict

The chief responsibility of a Union steward is to represent the interests of Union members. Whether representing the Local as a whole or an individual member in a disciplinary action, the premise is the same. The Union acts as the intermediaries between the agents and management, and attempts to provide fair treatment to the agents.

As important as this representation is, and despite it being a right guaranteed to all agents via the Collective Bargaining Agreement and labor law, specifically the Federal Labor Relations Authority, it is frequently interfered with by management. Proper representation is sometimes denied intentionally and sometimes through ignorance. The denial that will be addressed by this article is that of a deliberate nature.

Recently, the Union has faced problems with the Service regarding scheduled oral reply dates. For the lay person, who may be unfamiliar with the disciplinary process, part of the disciplinary action includes the right to present a written, an oral, or a written and oral reply, to a person in management other than the management personal who made the original proposal to discipline. Although the previous description of due process may sound confusing, it is dealt with frequently by agents and their stewards when addressing all discipline, ranging from a one-day suspension to termination.

When information is requested by an agent or his or her representative, an opportunity to reply orally to the charges is frequently included. The date for the oral reply is scheduled after the written reply has been received or the allotted time to issue a written reply has expired. The agent and his Union steward have no idea when the oral reply will be scheduled. It is therefore nearly impossible to schedule for the oral reply until after the Service has proposed a date for the reply.

Now, it would be expected that the Service would understand that the steward who began the process with the agent would be the one who is present at the oral reply. The steward, who is assisting the charged agent, inarguably knows more about the case and its defense than anyone else. He/she essentially becomes an expert on that particular case. The Service seems to agree with this. Citing a recent proposal for discipline issued by the Service, “you are entitled to be represented in this matter by an attorney or other representative of your choice.” ( Emphasis added.) This is actually pretty generic language and exists in all disciplinary proposals in one form or another

As mentioned before, the stewards are unaware of when the oral reply is going to take place. In two recent cases, stewards who were representing agents were unable to make the dates initially proposed by the Service. In both cases, the impediment was not due to personal plans but rather previous commitments within the Service. In short, work was preventing the stewards from attending the oral replies on the initially proposed days. Did the Service appreciate this reality? No, on the contrary, in one case the Service stated that another steward could represent the agent (despite it being a termination case), in the other case the Service offered the following opinion,

“The workforce has the right to be represented by the union. They do not have the right to be represented by a specific union member. Sector has more than done its share to facilitate meetings but we are at the point where we are getting unreasonable request for rescheduling because a specific union steward is not available. A specific incident is having the Deputy reschedule a meeting because ______was not available.

We need a common sense approach to these issues.” (sanitized correspondence between a Service representative, and Local 2366 Executive Officer.)

The rescheduling that the Service is referring to was due to the Union steward having previously scheduled, Service related plans for both of the proposed dates. The “unreasonable request” was merely, “I am not able to attend that day, due to _____ in fact I am tied up with other commitments for the rest of July. August would be better. Can we do it on another date?”( Note, this is not an exact quotation but, essentially, the message that was exchanged while leaving out details which may reveal the steward’s identity.) What is unreasonable about this? This is all in-spite of the Service frequently rescheduling, or just plain ignoring, meetings made by the Union to communicate with the agency. Somehow, the Service sees this rescheduling, which is not a common occurrence on the part of the Union, as a problem which needs a common sense approach.

Ok, here is a solution: assign a full-time Union representative for the Del Rio Sector. This would certainly be a great help to the agents and the Service, especially if they intend on continuing with the rash of termination proposals. It would assure that the steward had no conflicting work plans, which the Service apparently has such great qualms with

Or, (now this may sound “unreasonable”) deal with the fact that the agents who act as stewards may have other obligations. Because they do not know when the oral reply will be, the best they can do is make an effort to be present. Pending that, the appointment will have to be rescheduled. No steward is telling the Service to reschedule solely for the sake of doing so. To not allow the Agents their representative of choice (the steward who has been working on their case from the day of the proposal) the Service is sabotaging the agent’s opportunity to present the best defense. And the very least an agent should be promised is the best defense.

AUO Clarification

January, 28th 2008

To: All Union Members

SUBJECT: Clarification regarding the situation of Administratively Uncontrollable Overtime

Del Rio Sector management, as well as Laredo Sector and El Paso Sector, has decided to go to a four shift rotation. This limited change is in contrast to the first impressions given, that the decision to go to a four shift rotation encompassed the entire United States. There are many who have made an effort to blame the Union for this alteration, but there are certain facts that all should be made aware of prior to placing blame.

1. AUO (Administratively Uncontrolled Overtime) is uncontrollable, in that it is not anticipated, because it in unanticipated it cannot be scheduled. When someone is made to work checkpoint for eight hours and told to wait for relief from their position in excess of their eight hours, that additional time is scheduled and controllable, therefore time in excess of the eight hours would be considered RSOT (Regularly Scheduled Overtime.)

2. Management has historically regulated and mandated Agents to remain in static positions until after relief has arrived. Usually the relief would arrive after the scheduled eight hours of work. Because the Agent is not allowed the opportunity to stop working, anytime in addition to his/her scheduled eight hours would be considered RSOT.

3. The Union has the right to request that Agents be compensated in accordance with the laws regarding AUO and RSOT. Appropriate payment is not a privilege, it is the law. If that does not occur, then the Union has an obligation to its members to investigate any possible means to ensure that Agents are appropriately compensated.

4. Approximately 7 years ago, Local 2544 in Tucson, Arizona, filed a grievance over this issue with the Tucson Sector Chief Patrol Agent, David Aguilar. In the case of the Tucson violation of pay, Agents were spending in excess of three hours working after their regular eight hours. It was approximately 80 miles from the Tucson Station to their checkpoint, and they were expected, and ordered to work this time regardless of their opinions. Mr. Aguilar refused the grievance, citing it lacked merit, and misappropriate payment continued. On January 14th, 2008, Mr. Aguilar, now Chief of the Border Patrol, provided a memo to his subordinates informing them that they will be held accountable for any expenses incurred by the Government for the misapplication of the AUO laws verses RSOT. The ironic thing about this is that CPA Aguilar, by providing this memorandum, is in essence admitting that he was not following the laws regarding AUO and RSOT at the time that he was the Chief Patrol Agent of Tucson Sector. To further explain the current state of the grievance, no remedy has yet been given with regard to the Tucson Sector checkpoint to date. The present decision from the Del Rio Sector Chief, Randy Hill, appears to be knee-jerk and reactionary. There was no order from Mr. Aguilar, and certainly not from the Border Patrol Union, mandating the implementation of four shifts. Contrarily, the Local Union, 2366, was pleased with the previous arrangement of three shifts.

5. The following is a simple illustration. The agents were the victims of abuse by managed mis-payment in the past. Now management has overtly and covertly attempted to blame the Agents and the Union for requesting justice. The Agents are the victims and the managers the perpetrators. If someone is victimized by a perpetrator, who is at fault? The victim, because they happened to be forced into that situation by the perpetrator? It should be the perpetrator, but unfortunately, some people have gotten this backwards and have sought to tag the Union with the blame. The Union is trying to make right, what should have been right in the first place, yet some managers (not all) have taken the position that laws, regulations, and principles are directed by themselves.

6. A PAIC in Del Rio Sector sent an E-mail to his subordinate managers stating the following:

“The four shifts are a result of the latest law suit filed and won by the Union out in Arizona.”

“As supervisors, you have the authority to direct agents to work traffic after the end of their shift.”

“We will not be making work or allowing agents to just hang around so that they can maintain their two hours a day but if there is traffic out there we will direct agents to work it.”

“Another thing to keep in mind is that if you are short handed and need agents to work traffic you will be able to call in agents back once they have gone home or from their days off for as long as you need them. These call outs fall under the AUO guidelines and will be paid as AUO. Make sure that all assignments and call outs are fair and equitable to all agents.”

The Unions responses to each of these points are as follows:

a. The case is not complete and the four shifts are only occurring in three Sectors in the continental United States. This is nothing more than one of several possible solutions, decided on by the Del Rio Sector Chief, to prevent the misapplication of AUO laws.

b. If a Supervisor orders or directs an individual to work in addition to their regularly scheduled shift, it is not administratively uncontrollable. The laws regarding AUO state clearly that it is the decision of the Agent to continue to work because they know what needs to be done. You should notify the Union immediately if this occurs.

c. If there is traffic that is ongoing then the Agents normally make the call to continue to work it, and most managers know that it isn’t necessary to tell them to continue. If managers start telling people to go home, then they also will have no purpose to remain in the station and can go home after their eight hours and lose their AUO also. No troops in the field, then that manager has ended his/her necessity.

d. If you are called in on your days off or after you have left the station for the day that would be considered administratively controlled RSOT (The Supervisor is directing it). Should this become a problem, let the Union know what is going on.

In short, this simple explanation of events should clarify what is going on right now. If there are any more questions; ask a Union Representative. The Sector has stated that it has given the Union a 3A notice, informing us of the change that is to take place on February 17, 2008. Once the Local is in receipt of that notice, we will determine a course of action to pursue.

In solidarity,
Scott R. Davis
President, Local 2366 NBPC/AFGE Affiliated with AFL-CIO