By Ann Boehm, April 15, 2024
I teach a lot of classes where we discuss when a union representative has the right to attend a meeting between a representative of the agency and one or more bargaining unit employees. The statutory guidance on meetings is in 5 U.S.C. § 7114(a)(2). There are two different types of meetings that the union may attend – formal discussions (§ 7114(a)(2)(A)), and Weingarten meetings (§ 7114(a)(2)(B)).
In training sessions, I regularly present meeting scenarios and ask participants if the meeting is a formal discussion or a Weingarten meeting. Far too often, the response from participants is “both.”
Wrong answer. It cannot be both. If you do not trust me, please trust the FLRA.
Way back in 1985, the FLRA provided a thorough analysis of two different types of meetings in 5 U.S.C. § 7114(a)(2). Dep’t of Health and Human Services, Social Security Administration, 18 FLRA 42 (1985) (HHS). The FLRA explained that “section 7114(a)(2)(A) and section 7114(a)(2)(B) provide respectively that ‘(a)n exclusive representative . . . shall be given the opportunity to be represented at – (A) any formal discussion . . . or (B) any examination . . . in connection with an investigation . . ..’ The use of the conjunction ‘or’ to separate these sections indicates a Congressional intent that the right to union representation at formal discussions in section 7114(a)(2)(A) be separate from the right to union representation at an examination contained in section 7114(a)(2)(B).” Id. (emphasis added).
I rest my case.
In case you still need additional explanation, the HHS case did that by looking at the legislative history of section 7114. The FLRA noted that the representation right at formal discussions was intended “to apply to union representation at certain formal discussions between representatives of an agency and unit employees concerning grievances, personnel policies or practices or other general conditions of employment” and NOT “meetings which are ‘highly personal, informal meetings.’” Id.
By contrast, the legislative history regarding section 7114(a)(2)(B) Weingarten right establishes a representation right in a very narrow situation – an examination of a unit employee in connection with an investigation. The FLRA highlighted that “such a right will only attach where the employee who is being examined reasonably believes that the examination may result in disciplinary action and the employee requests representation. The requirement that the employee request representation further highlights the distinction between the right to representation under section 7114(a)(2)(A) and section 7114(a)(2)(B) respectively.” Id. (emphasis added). The FLRA continued: The “right to union representation under section 7114(a)(2)(A) is not contingent upon an employee’s request for such representation at formal discussions although it is a requirement for representation” at Weingarten meetings. Id.
There you have it, folks. A meeting cannot be both a formal discussion and a Weingarten meeting. That matters because the processes are different.
Make sure you assess the different meeting parameters for a formal discussion and a Weingarten meeting when considering whether the union can be present. Following this guidance will enable you to know when to and when not to allow the union’s presence in meetings between management and bargaining unit employees. And that’s Good News! [email protected]
[Editor’s note: Looking for more guidance, register for FLRA Law Week, which runs May 6-10, or the 60-minute webinar The Union Doesn’t Get to Attend Every Meeting on August 6.]
