GUIDANCE TO NBPC OFFICERS AND STEWARDS
THINGS TO REMEMBER:
1. The Office of the Inspector General (OIG, formerly OPR) or Office of Internal Audit (OIA) is NOT your friend!!!
2. There are NEVER any off the record discussions with OIG/OIA Investigators.
3. NEVER, EVER, talk to an OIG/OIA Investigator without Union representation and or legal counsel.
4. ALWAYS get a Union or other representative to be with you during an OIG/OIA interview.
5. NEVER volunteer information.
6. NEVER volunteer information about other employees unless you have first hand knowledge about the incident and are willing to testify against the employee in a hearing.
7. ALWAYS be careful to tell the truth.
Whenever employees are faced with an internal investigatory interview, a number of conflicting priorities arise. First of all, the notice to the employee demanding that he or she appear for the interview is often somewhat vague as to the charge(s). Employees may well not know exactly what they are facing. Employees may feel that the mere fact that an investigation has been initiated is a stain upon their reputation. They may then try to erase this stain by cooperating with the OIG/OIA investigator. They talk to OIG/OIA without benefit of a representative because they think that having someone else present might just confuse or complicate the situation. Employees sometimes feel that if they can just explain the situation to OIG/OIA that the matter will be resolved with no further problems. NOTHING COULD BE FURTHER FROM THE TRUTH!
1. OIG/OIA is not your friend.
OIG/OIA investigators (or other internal collateral duty investigators), although fellow employees of the Department of Justice, are not in the true sense co-workers. During an investigatory interview the employee and the representative should keep their dealings with the OIG/OIA investigator on a purely professional level. If either the employee or the representative feels a need to confer privately, ask for a break. During a break, leave the room. Do not chat with the investigator in the hall, do not drink coffee with him or her, or engage in small talk with him or her. You may find OIG/OIA investigators will encourage this kind of casual interaction they have been taught to establish a rapport with their subject. Don’t fall for it!
2. There are never any off the record discussions with an OIG/OIA investigator.
Unless certain grants of immunity have been given, everything you say to the investigator will be used against you later. Do not accept an offer to explain a situation or to conduct an off the record discussion it will be used against you later.
Further, do not talk about an incident discussed during your interview with OIG/OIA with anyone other than your representative. Those persons could be brought before OIG/OIA and forced to divulge your conversation or be faced with either contempt or perjury charges. Do not place your friends in this position.
3. NEVER, EVER, talk to OIG/OIA alone without Union representation and or legal counsel.
Often OIG/OIA investigators work in pairs in an attempt to badger and isolate an employee. The psychological advantage for the investigators is obvious and real. When an employee is alone during an interview, OIG/OIA investigators are far more likely to be abusive and coercive. The mere presence of another person on the side of the employee at the interview works wonders at keeping OIG/OIA honest.
4. ALWAYS get a Union representative or attorney to be with you during an OIG/OIA interview.
An employee has the right, under the law, (5 U.S.C. ‘ 7114) and under the contract (Article 31A) to have a representative present when questioned by OIG/OIA. This right is not self-enforcing, however. You must demand that the Union (or attorney) be present during the interview. OIG/OIA will not necessarily advise you of this right. In fact, they have often tried to convince employees that they don’t need a representative by saying such things as well, if you are innocent, what do you need someone else here for? Utilize your right to a representative C demand it.
5. NEVER volunteer information.
It is wise for an employee to respond to OIG/OIA questions with monosyllable answers. Answer the questions with a simple yes or no, if possible. Explain or amplify your remarks only if a simple response is misleading.
If a question is unclear or is one that is made up of two or more parts that require separate answers, ask that the question be rephrased. If you are uncertain as to the answer to a specific question, don’t guess. Simply say that either you cannot recall or you are not sure. Do not allow yourself to be harassed by the investigator. If an investigator is being abusive, tell him or her so. If he or she continues this behavior, the representative should ask to confer with the employee alone after each question. This will tend to slow down the interview and may put a stop to such conduct.
6. NEVER volunteer information about another employee unless you have first- hand information.
An employee should never volunteer information about another employee unless he or she has first-hand knowledge as to what is involved and is willing to testify about the employee. Reports of hearsay and rumor do tremendous damage to employee morale and confidence and do little good.
7. ALWAYS be careful to tell the truth.
This admonition is not intended to suggest that you volunteer any information not asked or that you burst forth with a detailed explanation of an incident. It is, however, extremely important that you do not make any misrepresentations C no matter how minor they may seem.
For example, an agent was asked by an OIG/OIA investigator when he first met a certain person. The agent, although he had encountered the person on a previous occasion, said that he first met the person at a later date in a restaurant. The agency then conducted a second investigation during which the agent corrected his earlier misrepresentation. He was then charged with FALSIFICATION DURING AN OFFICIAL INVESTIGATION.
It has also frequently happened that an employee denies a particular charge during the course of an investigation. The agency then, not believing him, later charges him with having committed the charged misconduct and lying about it.
LEGAL RIGHTS OF EMPLOYEES
Border Patrol employees enjoy the same constitutional protections as other citizens. These protections are not automatic, however; they must be asserted by the employee. Agency investigators may or may not advise employees of their right to remain silent and obtain legal counsel pursuant to Miranda. If an employee volunteers information, any statements made may be used against him or her in both criminal and administrative proceedings.
When questioned about potential criminal activity, Border Patrol employees should immediately invoke the Fifth Amendment’s protection against self-incrimination and refuse to answer any questions. A representative of the employer may force the employee to answer questions by threatening to discharge him or her for refusing to answer questions. The Supreme Court has held that at that point, the employer has, wittingly or otherwise, granted criminal use immunity to the employee. In other words, any statements or their fruits cannot be used against the employee in any subsequent criminal proceedings. See Garrity v. New Jersey, 385 U.S. 493 (1967). The employee must then answer questions related to his or her employment or face the possibility of discharge for refusing to do so. It is important to note that these coerced statements and their fruits can be used against the employee in administrative proceedings.
Employees who are forced to answer their employer’s questions are entitled to representation by the Union.
Employees who are read their Miranda rights in any situation should immediately contact an attorney. The same advice applies to an employee who is subpoenaed or invited to appear before a Grand Jury.
FLRA DECISIONS REGARDING AN EMPLOYEE’S RIGHT TO UNION REPRESENTATION WHEN UNDER INVESTIGATION
A. An employee is entitled to have a Union representative present when questioned if the following conditions are met:
1. There must be an examination. This means that the employee is asked questions. In one case, where a meeting was called to give an employee a letter of leave restriction and to answer any questions the employee might have, the FLRA found there was no examination. An agency is not required to remain absolutely silent when delivering a notice of disciplinary action or leave restriction to an employee. Not every negative conversation between an employee and a supervisor is an examination. See Social Security Administration, Albuquerque NM and AFGE Local 4041, 56 FLRA No. 105 (9/21/00) [100 FLRR 1-1147]. But an examination does occur when an employee is asked questions about an incident. When a supervisor starts asking questions about an employee’s duties (or other aspects of employment), the conversation becomes an examination. Note that an examination also includes situations where an employee is ordered to submit a written memorandum explaining an incident.
2 The examination must be in connection with an investigation. Was traffic bad today? is obviously a question, but since the supervisor asking the question is not trying to investigate wrongdoing by the employee, there is no right to union representation.
3. The examination must be conducted by a representative of the agency.
a. It is now well settled that OIG Investigators are in fact representatives of the agency, and therefore employees are entitled to union representation when questioned by an OIG Investigator. See NASA v. FLRA, 119 S.Ct. 1979 (U.S. Sup. Ct. 1999) [99 FLRR 1-8005].
b. But count on the Dept. of Justice to look for a loophole. In Department of Justice and AFGE Local 709, 56 FLRA No. 87 (8/11/00); [100 FLRR 1-1129]. OIG Investigators denied a bargaining unit employee’s request for a union representative. Their excuse was that since they were conducting a criminal investigation, there is no right to union representation. (This argument is based on a footnote to the Supreme Court decision, where the Supreme Court said it was not ruling on whether the Weingarten right to have a union representative applied to law enforcement officials with a broader charge) The FLRA said the agency was misinterpreting the footnote, which was addressed to NASA’s concern that the Weingarten right could interfere with an FBI investigation. When OIG is conducting the investigation, the agency cannot avoid allowing union representation by putting the label criminal on the investigation.
c. An open question is what happens when the FBI and the agency investigators team up? Right now, there is no answer to that question. In one case, two employees were separately interrogated regarding drugs found at the workplace. An FBI agent conducted the investigation, but a lieutenant from the agency’s special investigations office sat in on the meeting. The union took this case to arbitration, and the Arbitrator ruled against the employees (no right to union representation). The Union then appealed to the FLRA, but the Authority just sent the case back to the Arbitrator for clarification. (The FLRA wanted to know if the Arbitrator’s decision was based on the law or the language of the parties negotiated Agreement). AFGE Council of Prison Locals, Local 1286 and Federal Bureau of Prisons, Federal Prison Industries, Inc. 56 FLRA No. 143 (9/29/00); [101 FLRR 1-1026].
4. The employee must reasonably believe that discipline could result (there doesn’t have to be any discipline actually taken). OIG/OIA investigators tend to think that if you are designated a witness rather than a subject on the form ordering you to appear for an investigatory interview, you automatically have no reasonable fear of discipline and therefore no right to union representation. THIS IS NOT TRUE. If a person designated as witness has a reasonable fear of discipline, that person is entitled to union representation. A witness might very well be subject to disciplinary action for not reporting wrongdoing that he witnessed by a fellow Agent, for example.
5. The employee must actually request representation. If the employee doesn’t open his mouth and say I want a union representative, or words to that effect, none of the rest matters.
The 1995 Agreement contains some additional language concerning an employees right to representation when under investigation (Article 31), but the above rights are what is spelled out under the law. Remember, violations of rights spelled out in the law can be filed as ULPs. But the violation of a right that exists only in the contract can only be enforced through a grievance.
For example, the contract requires management to advise an employee in writing of his or her right to be represented by the Union prior to taking any written or sworn statement. Failure to provide the employee with this information is a grievance, but not a ULP.
6. Other Considerations During Investigations:
a. The U.S. Supreme Court issued a decision on January 21, 1998 stating that employees must tell the truth during investigations. A lower court had said that an agency cannot use the employee’s denial of the charges as a separate offense for a charge of misconduct. But the Supreme Court said the right to answer charges does not include the right to lie about them. LaChance v. Erickson, 118 S.Ct. 753 (1998), [98 FMSR 7004].
b. You can always be ordered to show up at an investigative interview. Ordering an employee to go to an interview is totally separate from what the interview is about, and whether the employee can be ordered to talk. Administrative and criminal immunity are partially addressed in Article 31, Section D. Remember the Miranda warnings an employee facing possible criminal charges has the right to remain silent (and the right to an attorney), unless forced to answer under threat of discipline, in which case their answers cannot be used against them criminally, but can be used against them in administrative actions. See Garrity v. New Jersey, 385 U.S. 493 (1967) and Kalkines v. The United States, 473 F.2d 1391 (Ct. Cl. 1973). As explained earlier, the possibility of administrative action entitles employees to Union representation.
FLRR Perspective ‑ February 1997
THE EMPLOYEES RIGHT TO PRIVATE CONFERENCES
DURING WEINGARTEN EXAMINATIONS
By Richard B. Grant, Jr., Esq.
Under 5 USC 7114(a)(2)(B)(i), an employee who is investigated for misconduct by an agency is entitled to union representation during an investigative examination if he or she reasonably believes that the examination may result in disciplinary action.1 The Authority has held that the purposes of section 7114(a)(2)(B) can be achieved only by allowing a union representative to take an active role in assisting the employee with his or her defense during the investigation. See Headquarters, NASA, Washington, D.C. and NASA, Office of the Inspector General, Washington, D.C. and AFGE, Local 3434 (NASA), 95 FLRR 1‑1068, petition for enforcement filed sub nom. FLRA v. NASA, Washington, D.C. and NASA, Office of the Inspector General, Washington, D.C., No. 95‑6630 (11th Cir. filed 07/31/95).
The representatives right to take an active role includes not only the right to assist the employee in presenting facts for his defense but also the right to consult with the employee. Department of Veterans Affairs, Veterans Affairs Medical Center, Jackson, MS, 93 FLRR 1‑1266. However, section 7114(a)(2)(B) does not address the extent to which an employee may confer privately with his or her union representative while an investigative examination is in progress. In the absence of specific statutory guidance, the Authority has taken a fact‑specific approach to the two cases in which this issue has arisen.
In INS, Northern Region, Twin Cities, MN and Office of the Inspector General, Washington, D.C. (Twin Cities), 93 FLRR 1‑1048, the Office of Inspector General conducted an investigation of an INS Border Patrol Agent who was suspected of misconduct. The investigator informed the employee prior to his examination that the results of the investigation could be used against him in administrative disciplinary proceedings, and that any false statement made by the employee could subject him to criminal prosecution.
As the examination proceeded, the employee’s designated union representative attempted to interrupt the investigators line of questioning so that he could confer privately with the employee. The investigator repeatedly denied the representatives requests for a private conference and informed the representative that his role was limited to clarifying questions and ensuring that the investigation followed proper procedures. Although there were two breaks during the interview, the investigator remained within earshot of the employee and his representative. However, the investigator informed the representative that he could talk to the employee in the presence of the investigator.
The Authority found that the investigator had interfered with the representative’s ability to actively assist the employee by informing him that he could not advise the employee during the examination. Even if the representative had been allowed to make a statement at the end of the examination, the Authority wrote, such a concession would not have been adequate because representation during an examination cannot be restricted to a portion of it. See U.S. Customs Service, Region VII, Los Angeles, CA and NTEU, 5 FLRA 297 (1981) (violation of section 7114(a)(2)(B) where representatives participation was limited to practice interview prior to actual examination and comments at the conclusion of the examination).
The Authority went on to adopt the ALJ’s conclusion that the investigator had committed a separate violation of section 7114(a)(2)(B) by prohibiting the employee and his representative from having a private conference during the examination. According to the Authority, nothing in the record indicated that a brief conference outside the hearing of the investigator would have been unduly disruptive or would have interfered with the objective of the investigation. Therefore, the Authority sustained the ULP charge against the agency.2
The private conference issue arose again in Bureau of Prisons, Office of Internal Affairs, Washington, D.C. and Federal Correctional Institution, El Reno, OK and AFGE, Local 171 (Federal Correctional Institution), 52 FLRA 421 (1996). In this case, the agency conducted an investigation of an employee whom the agency suspected of serious alleged improprieties. The investigators informed the employee and his union representative that the examination would consist of 45 minutes of questioning followed by 15‑minute breaks. During the course of the questioning, the employee and his representative twice requested a recess so that they could confer outside the interview room. The lead investigator denied the requests, but allowed the employee and his representative to confer in the interview room.
In the ensuing ULP case, the ALJ noted that the lead investigator left the interview room on several occasions, while the other investigator remained in the room and took notes. While the employee and his representative took advantage of these occasions to whisper back and forth, they did not avail themselves of the opportunity to move to the rear of the room out of earshot of the remaining investigator. The ALJ also found that the employee and his representative had ample opportunity to confer outside the interview room during breaks. As such, the ALJ determined that the agency’s denial of the recess requests for private conferences was a reasonable limitation on the employees Weingarten rights.
On appeal, the union argued that Twin Cities had established a per se rule giving employees the right to private conferences during investigative examinations where doing so would not unduly disrupt the examination. However, the Authority explained that its decision in Twin Cities was limited to the facts before it in that case, and that a more proper approach for resolving the instant case would be to determine whether the actions of the agency interfered with representative’s active and effective participation in the employee’s defense.
Turning to the facts of the case before it, the Authority noted that the employee and his representative were given opportunities to privately confer both outside the interview room (during the scheduled, 15‑minute breaks) and inside the interview room (when the lead investigator was absent). Furthermore, there was no indication that interrupting the examination to grant the requested recesses would have enhanced the representative’s ability to assist the employee. The Authority pointed out that the employee refused to answer the questions about his family that apparently precipitated the recess requests. In light of this evidence, the Authority found that the union failed to carry its burden of showing that the recesses were reasonably necessary to ensure active and effective union representation.
Member Wasserman dissented from the majority’s conclusion that the agency had not violated section 7114(a)(2)(B). According to Member Wasserman, the employee had been denied the benefit of a meaningful, pre‑interview conference with his representative because he was not given advance notice of the scope of the examination. Although the employee was permitted to confer privately with his representative during scheduled breaks, Member Wasserman continued, the timing of the breaks did not allow the representative to advise the employee before answering particular questions. Finally, Member Wasserman found no evidence that granting the recess requests would have interfered with the objective or integrity of the investigation.
As seen above, the Authority’s fact‑intensive analysis of the issue of private conferences during Weingarten examinations has yielded opposite results. In Twin Cities, the denial of the employee’s recess request was found to violate section 7114(a)(2)(B); in Federal Correctional Institution, the denial of the employee’s request was found to be a reasonable limitation on his Weingarten rights.
The key to avoiding a ULP charge in this context appears to be the flexibility afforded to the employee whose spontaneous recess requests have been denied. For example, although the employee in Federal Correctional Institution was not allowed to interrupt his examination at will (even the hallowed Weingarten decision cautioned that the presence of a union representative should not transform the examination into an adversary contest), he was given several opportunities to confer privately with his representative. Moreover, Member Wasserman implied in his dissent that he would have sided with the majority if the agency had simply given the employee advance notice of the scope of the investigation and allowed him to confer privately with his representative before the examination took place. Member Wasserman added that private conferences may be completely unnecessary in cases where the scope of the interview and its possible effects on the employee are clear and the representative is permitted to confer with the employee in the interview room during the investigation.
In conclusion, the conflict between Twin Cities and Federal Correctional Institution may be more apparent than real, as the Authority applied the same fact‑intensive approach in both cases. However, the Authority’s case‑by‑case analysis provides little guidance at a time when only two cases (one of which contains a dissent) have addressed the issue. The Authority will no doubt refine its position on this issue in future cases.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
Affiliated with AFL-CIO
80 F Street, N.W., Washington, D.C. 20001
MEMORANDUM: 7d/BP Council February 15, 1995
TO: AFGE Border Patrol
FROM: Mark D. Roth
SUBJECT: Investigative Interviews.
Pursuant to law, 5 U.S.C. ‘7114(a)(2)(B), a bargaining unit employee has the right to request a Union representative during an investigative interview. An investigative interview is defined as a formal discussion with a representative of the Agency where the bargaining unit employee could reasonably fear that disciplinary action could result.
The right to a Union representative during an investigative interview applies regardless of whether the interview is being conducted by the Border Patrol or OPR.
A recent Court of Appeals decision1 establishes different rules for investigatory interviews conducted by the DoJ Office of Inspector General (OIG). In its decision, the Court of Appeals found that the ‘7114(a)(2)(B) right to Union representation did not attach if the interview was being conducted by the OIG’s office. AFGE believes that this decision is erroneous and in conflict with a similar case in the U.S. Court of Appeals for the Third Circuit, involving the Department of Defense, which holds to the contrary. As future opportunities arise, AFGE’s Office of General Counsel intends both to challenge in other courts of appeals any adoption of this decision’s rationale by the FLRA and to exploit the loophole presented in this case resulting from the Authority’s having sustained the ALJ’s ruling that the Department of Justice was not “responsible” for the violation of section 7114(a)(2)(B) and dismissing Justice from the case on that basis.
Our recommendation, at this time, is for all bargaining unit employees to demand the presence of a Union representative during any investigative interview. AFGE recommends that the employee request the presence of a Union representative, regardless of the identity of the management representative. Should the management representative claim to be an OIG investigator, the employee should request, on the record, that the management representative identify him/herself and the organization that he/she claims to represent. It would be appropriate for the employee to request to examine the management representative’s identification at this time. The employee should request that his/her demand for a Union representative be dealt with, on the record, by the management representative.
If an OIG representative continues to deny the bargaining unit employee’s request for Union representation, the bargaining unit employee acts at his/her peril in refusing to cooperate or answer appropriate questions during the interview. However, should any management representative deny the bargaining unit employee’s demand for a Union representative, the Union should file Unfair Labor Practice charges against the Department of Justice, the Immigration and Naturalization Service, the Border Patrol, and the Department of Justice Inspector General.
Under current case law, information that is coerced from an employee under threat of discipline for failure to answer is not criminally admissible against the employee. Bargaining unit employees are reminded that they have a right to the presence of an attorney during questioning. Should Miranda be read, employees are urged to immediately seek the assistance of counsel.
I hope that the above summary of pertinent information, most of which your Council has already received, is helpful. Please contact Assistant GC Joe Goldberg for further assistance.
 The Department of Justice feels that the Union is not entitled to represent employees in OIG investigations. The Union disagrees. The question has yet to be settled by the courts. In the meantime, employees should request Union representation, but should not refuse to talk to OIG representatives without a Union representative if their request is denied. (Employees in this situation should then obtain an attorney if possible.) Afterwards, an unfair labor practice charge should be filed. (See Advice Memorandum from AFGE)
11 Sect. 7114(a)(2)(B) was enacted to provide Federal employees with representational rights similar to those granted to private sector employees in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). Thus, an employee’s rights under section 7114(a)(2)(B) are commonly referred to as Weingarten rights. In Weingarten itself, the Court held that the presence of a union representative during an investigative examination of an employee was necessary to preserve the bargaining power that the employee would be lacking if forced to confront his or her employer alone.
2 The D.C. Circuit subsequently vacated and remanded the Authority’s decision. INS v. FLRA, 39 F.3d 361 (1994). The court explained that the agency had not conducted the investigation itself and did not direct the Office of Inspector Generals conduct of the investigation. Therefore, the employee was not entitled to union representation at all because the examination had not been conducted by a representative of the agency as required by section 7114(a)(2)(B). This issue is far from settled, however. In Defense Criminal Investigative Service, Department of Defense v. FLRA, 855 F.2d 93 (1988), the Third Circuit held that a DCIS investigator who reported to the agency’s Office of Inspector General was a representative of the agency.
The Authority responded to the split between the D.C. and Third Circuits by siding with the Third Circuit. In NASA, supra, the Authority announced that it would no longer decline to hold agencies liable for the statutory violations of their Inspectors General. As noted above, the Authority’s decision in NASA supra, is on appeal to the Eleventh Circuit.
1 Department of Justice v. FLRA, 39 F.3d 361 (D.C. Cir. 1994); 147 L.R.R.M. 2712 (1994).