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Third Party Witnesses at Arbitration

A government employee (and his/her union) has many rights relating to being called as a witness in an arbitration case. This is often an extension of the grievance process so the employee has representation rights and generally participates voluntarily and without any form of coercion or threat.

Generally, an employee can choose to participate or not participate at an arbitration involving someone else. If management seeks to interview an employee about his potential testimony at an upcoming arbitration it must follow certain steps. It must notify the employee of the purpose of the interview, must explain that participation in the prep session is voluntary and that no retaliation will occur if the employee refuses to meet, and the meeting itself must not be coercive or threatening. See Brookhaven, 9 FLRA 930 (1982); see also Johnny’s Poultry, 146 NLRB 770 (1964)(private sector equivalent case). The discussions should not go beyond the legitimate scope for the prep session and should not delve into areas about protected union activity (such as confidential internal union matters).

Because such meetings are often also considered “formal meetings,” the union is entitled to advance notice of the meeting and a chance to be present. Often times the agency fails to do this. Generally, these are not investigatory about the person being interviewed, so there is usually no requirement of a Weingarten representative, although in some cases that could also be a factor if the employee reasonably believed he could be subject to discipline for his responses. Nonetheless, because the employee would be discussing work policies, rules, and other matters, the union has a right to be present, regardless of whether the employee asks for a representative. Employees should ask for a representative any time they encounter this situation.

Whether to testify at all is generally voluntary. The contract states that the union can request that management officials be provided for testimony, but it does not compel employees to testify. However, it should always be kept in mind that if a particular witness is truly critical to the case and doesn’t testify, the arbitrator could consider that to be a strategy by management or union to hide problematic information and could assume (make adverse inference) that the information would be helpful to the opponent. So, anytime an important witness considers not testifying, careful consideration must be given to any potential repercussions. Moreover, if the employee is ordered by management to appear the employee needs to comply with such an order.

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