Workplace investigations can be complex, and when unionized employees are involved, the complexity can increase due to additional layers of legal and procedural considerations. As an HR professional or workplace investigator, understanding how to navigate these investigations is crucial. In today’s Investigative Edge, we’ll discuss key aspects such as collective bargaining agreements, Weingarten rights, Garrity rights, and provide tips to effectively manage investigations involving union members.

Understanding Collective Bargaining Agreements

Collective bargaining agreements (CBAs) are contracts between employers and unions that outline the terms and conditions of employment, including procedures for handling workplace disputes and investigations. When investigating an incident involving a union member, it's important to review the relevant CBA to understand the specific process that must be followed. This agreement will guide you on procedures such as notifying the union, timelines for the investigation, and rights of the employee under investigation.

Weingarten Rights

Weingarten rights stem from a 1975 U.S. Supreme Court decision that grants unionized employees the right to have a union representative present during investigatory interviews. This right is invoked when an employee reasonably believes that the interview could lead to disciplinary action. As an investigator, you must respect this right by informing the employee of their Weingarten rights and allowing them to secure a union representative if they choose to do so.

Garrity Rights

Garrity rights apply primarily to public sector employees and protect them from being compelled to incriminate themselves during investigatory interviews. These rights stem from the 1967 U.S. Supreme Court case Garrity v. New Jersey. If an investigation could lead to criminal charges, investigators must inform employees of their Garrity rights. This ensures that any statements made during the investigation cannot be used against them in criminal proceedings.

In a recent investigation I consulted on, Garrity rights became a key issue. The case involved a public sector employee who had been accused of misconduct. Interestingly, the complainant had unlawfully recorded an incident in an attempt to catch the subject in the act. This raised legal concerns, particularly around the admissibility of the recording and the rights of the accused employee. This experience underscored the importance of being well-versed in Garrity rights and prepared for such legal intricacies in workplace investigations.

Five Substantive Tips for Investigating Unionized Employees

Familiarize Yourself with the CBA

Before initiating any investigation involving a union member, thoroughly review the collective bargaining agreement. This document will provide guidelines on how to proceed and ensure that you are compliant with the agreed-upon procedures. Pay particular attention to sections related to disciplinary procedures and the role of union representatives.

Communicate Clearly and Early

Effective communication with both the employee under investigation and the union is important. Notify the union representative as soon as possible and provide them with relevant details about the investigation. Clear communication helps in building trust and ensures that all parties are on the same page regarding the process.

Document Everything

Accurate and detailed documentation is essential in any investigation but becomes even more important when union members are involved. Record all communications, interview notes, and decisions made throughout the investigation. This documentation will be invaluable if there are disputes or if the case progresses to mediation, arbitration or litigation.

Respect Employee Rights

Ensure that you are fully aware of the employee's rights under Weingarten and Garrity. Inform employees of their rights at the appropriate times and ensure that these rights are respected throughout the investigation. Failing to do so can result in grievances and undermine the integrity of the investigation.

Collaborate with Union Representatives

Union representatives can be valuable allies in ensuring a fair investigation process. However, some may try to become overly involved or even testify on behalf of the employee. It’s important to establish clear boundaries and maintain the integrity of the investigation. Communicate openly with the union representative, keep them informed, and address their concerns without compromising the investigation's objectivity. If a union representative attempts to interfere, document these interactions and remind them of their role and limitations in the investigation process.

Conclusion

Investigating incidents involving unionized employees requires a thorough understanding of collective bargaining agreements, Weingarten rights, and Garrity rights. By familiarizing yourself with these elements and following the tips outlined above, you can navigate these investigations effectively and ensure that they are conducted fairly and legally. Remember, the goal is to maintain a respectful and compliant investigation process that upholds the rights of all parties involved.

Seeking external support to assist with challenging cases, contact me. If you need more help with your investigations, download my Workplace Discrimination Investigation Interview Templates, designed to guide you through conducting effective and comprehensive interviews.