Weaseling out of Weingarten: Why Outsourcing Investigatory Examinations Does Not Obviate Representational Rights under the FSLMRS

Authors

Craig Westergard

Abstract

The Federal Service Labor Management Relations Statute (hereinafter "FSLMRS") grants covered federal employees the right to union representation at investigatory examinations conducted by "a representative of the agency." While the Supreme Court has defined the term "agency representative" broadly, some courts have permitted agencies to evade the FSLMRS by outsourcing examinations to third parties. This trend is contrary to Supreme Court precedent, the text of the FSLMRS, and the purposes of the statute, and it deprives federal employees of their representational rights. As such, it should be repudiated.

This article first describes the history of unionization and outlines the substantive provisions of the FSLMRS. It then documents judicial inconsistency in interpreting the phrase "a representative of the agency," and shows that the broad definition promulgated by the Supreme Court comports with the text, legislative history, and underlying policies of the FSLMRS. This article concludes by proposing factors that courts should consider when determining whether examiners qualify as agency representatives, and it calls upon the judiciary to adopt these standards.

Recommended Citation

Westergard, Craig (2020) "Weaseling out of Weingarten: Why Outsourcing Investigatory Examinations Does Not Obviate Representational Rights under the FSLMRS," Hofstra Labor & Employment Law Journal: Vol. 38: Iss. 1, Article 4.
Available at: https://scholarlycommons.law.hofstra.edu/hlelj/vol38/iss1/4