Build Bridges, Not Barriers: Five tips for making the most of a union representative’s presence
Investigators, particularly those who perform investigations in the public sector, often conduct interviews where a witness or respondent will have a union representative present. Some investigators are intimidated or put off by the presence of a union representative because they presume the representative will be obstructive, disruptive, or adversarial. While that is sometimes the case, more often than not, the presence of a representative can aid in the gathering of relevant evidence. Even if a representative is more assertive than others in representing their “client,” there are several ways to help inoculate against disruptive behaviors and opportunities to turn the representative into an ally in your investigative efforts. Whether the representative is an attorney, shop steward, or business representative, the following tips will help you get off on the right foot and avoid unproductive conflict.
#1 Make Contact Early
If you know who the union representative will be, it is usually a good idea to reach out to them in advance of the interview to introduce yourself. This is an opportunity to build rapport, humanize yourself, and help establish a dialogue you can build upon later. Consider explaining your impartial role, inviting them to ask questions about the conditions of the interview, and encouraging them to reach out with any concerns. This is a great way to help identify any sticking points early on so that you do not waste precious interview time sorting out any conflicts or procedural issues that could have been resolved beforehand. A representative may even volunteer information that aids your investigation or give you an idea of how to better prepare for the upcoming interview.
#2 View The Representative As A Resource
Beyond a representative’s role as an advocate, they can also provide helpful contextual background, decode trade jargon, clarify confusing interviewee responses, and help better develop the evidentiary record. Union representatives can often help contextualize or clarify the response of an interviewee who is perhaps too nervous to provide a completely responsive answer, incorrectly presumes you have certain foundational knowledge, or is just not particularly articulate. Shop stewards and highly-engaged business representatives are especially useful in their capacity to identify key decision-makers or provide information about past practices and operations. Because of their increased level of access and frequency of interaction with management, union representatives may be privy to information that may be outside the scope of the interviewee’s knowledge. That knowledge can often significantly streamline the interview or narrow the scope of inquiry.
#3 Express Appreciation For The Representative’s Role In The Process (And Define It)
Early in the interview, make sure to recognize and express gratitude for the union representative’s presence and the important role they play in the investigative process. Use their full name and correct title. Mention the ways in which they can aid the process (outlined above), and tactfully summarize the ways in which they might undermine productivity of the interview or the quality of their client’s responses (interrupting, coaching/prompting, or making courtroom-style “objections”). Letting the representative know that you have reserved time toward the end of the interview for them to put any statements on the record or ask any clarifying questions may also help to discourage mid-interview interruptions and objections.
#4 Choose Your Battles
The interview process is supposed to be an information-gathering process, not an adversarial one. Wherever possible, investigators should avoid placing themselves in the middle of disputes that are best resolved between the employer and the representative, even if the investigator personally disagrees with what the representative is saying. For example, a representative might assert that the content of an interview notice was inadequate or that the investigation was only initiated because a particular supervisor has a personal agenda against the Respondent. Instead of arguing that the notice was sufficient or prematurely revealing that the investigation was prompted by multiple public complaints, investigators should acknowledge the representative’s concerns and explore or redirect them, as appropriate.[1]
Be mindful that union representatives are sometimes under pressure to demonstrate value to their “client,” which can come in the form of vociferous assertions of rights and objections. It is usually best to just allow the representative to “make their (objections on the) record” and identify the party with whom their objections are best raised.
The only “battles” worth “fighting” are those that 1) cannot be avoided; and, 2) present circumstances that directly prevent the investigator from gathering relevant evidence. For example, a representative might assert that the investigator cannot ask the Respondent about statements he made to his co-workers because the statements are “hearsay.” In that case, the investigator should consider and acknowledge the objection, but do their best to respectfully redirect the question to the Respondent and/or confirm whether the Respondent is refusing to answer the question (and risking insubordination).[2]
#5 Watch For “Tells”
A good union representative will likely have a pretty good idea of what their client is going to say and what their potential exposure is before they come into the interview room. By paying attention to changes and patterns in the representative’s level of engagement, savvy investigators can sometimes glean insights into areas of questioning that are particularly pertinent. If a representative suddenly jumps in with an objection after remaining quiet or frequently calls for breaks when you delve into a particular line of questioning, they might be doing so because they know their client’s response is unfavorable. Seasoned representatives know they can sometimes dissuade or intimidate a less experienced investigator into avoiding or abandoning a line of questioning if the representative raises enough resistance. While you should consider and entertain any legitimate “objections,” this change in behavior is usually a cue to inquire further, not to back off.
Van Dermyden Makus benefits from the experience of several former union representatives. We know the techniques and tools of the trade employed by savvy union representatives; we also respect and understand how to get the most out of the important role and contributions representatives may make to the investigative process.
[1] For example, “I understand your concerns about the interview notice. I did not write it, but I will bring this up with my contact in Human Resources. Is there any specific information or clarification you would want to see in the notice?” or, “I appreciate you raising the issue of individuals’ motivations, and this is something I think we can explore as it comes up through questioning or definitely at the end of the interview if it does not come up before then.”
[2] For example, “I understand that the question calls for hearsay, and while this is not a courtroom where the hearsay rules apply, I will note your objection for the record and allow you to raise any other concerns about the reliability of any hearsay statements after I finish my questions. So, Mr. [Respondent] I was asking…”
If the representative insists that the investigator cannot ask a relevant question, an investigator could respond, “I understand your position on this issue, however, [Employer] has directed Mr. [Respondent] to cooperate in this investigation, so while I understand your objection, I am going to direct him to answer this question. Mr. [Respondent], would you like me to repeat the question?”
If the representative continues to insist, the investigator can reply, “It is not my role to adjudicate disputes about the questions, so I am prepared to move on, but I just want to make sure we are clear, Mr. [Respondent], are you refusing to answer this question?”
