By Ann Boehm, March 15, 2022
One of the most frequent labor relations questions I get from supervisors is, “Does the union get to attend meetings between me and an individual bargaining unit employee?”
The answer to that question is, “It depends.” And I would add, “Probably not as often as bargaining unit employees think.”
Many union stewards, bargaining unit employees, and supervisors do not understand when a union representative may be present for a meeting between management and 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)).
This article focuses on the Weingarten right. In my experience, people tend to believe the Weingarten right to representation arises more often than it does. Let me try to explain when the right does arise.
To trigger the Weingarten right, there has to be an investigation by the agency. That typically means a misconduct investigation. If there’s no investigation occurring, you can pretty much stop there — no right to a union representative.
If there is an investigation, the next consideration is whether the representative of the agency is examining a bargaining unit employee, or to put it another way, asking questions. No questions, no right to representation.
But wait, there’s more. If there is an investigation, and there is an examination of a bargaining unit employee by an agency representative, the employee still has to “reasonably believe” that disciplinary action against the employee could result from the examination in order for the employee to have a right to union representation in that meeting. (You still with me??) If the employee is the subject of the investigation, it is highly likely that “reasonable belief” requirement will be met. However, if the employee being questioned is just one of many witnesses, the requirement will not be met. No reasonable fear of disciplinary action, no right to union representation.
And that’s not all. The employee has to request a union representative (unless the collective bargaining agreement specifies that the agency representative has to inform the employee of their right to representation). The union cannot assert the Weingarten right for the employee. It’s up to the employee to seek the representation. No request for representation, no right to representation.
I’m not done yet. If those are the triggers for the Weingarten right, what types of meetings are NOT going to trigger the right?
Our friends at the FLRA highlight a few specific types of non-Weingarten meetings in the Office of the General Counsel’s Guidance on Meetings (Sept. 1, 2015).
The Authority has routinely held that performance counseling sessions and other meetings intended to convey concerns over the quality or timeliness of an employee’s work performance do not constitute “examinations” within the meaning of section 7114(a)(2)(B) where they are not designed to elicit information from the employee, but rather to inform and counsel the employee regarding performance deficiencies. It has reached the same conclusion regarding meetings to announce disciplinary actions, as well as meetings conducted for the purpose of giving the employee an assignment or a test or as part of a non-disciplinary classification desk audit.
So, there you have it. I hope this helps you understand the parameters of the Weingarten right. The union doesn’t get to attend every meeting. That’s Good News! (Stay tuned. Next month I’ll cover formal discussions.) Boehm@FELTG.com