Union Representation During Counseling

Question

“Am I [statutorily] entitled to Union representation during a counseling session with my supervisor (from a bargaining unit employee)?”  (Note, this question is paraphrased from the original submission, which was very lengthy.)

Answer

We do not know all the specific facts of your case and facts influence our analysis.  Therefore, we will respond in general terms.  We re-state this policy since some employees advised InformedFed they are applying the analysis found on this site to their specific circumstances, which can vary greatly and be subject to a number of variable influences.  To maintain ease of reading and application, InformedFed avoids posting lengthy and complex analysis intended to cover every scenario.

The first thing any bargaining unit employee should do when determining whether they have a right to union representation is refer to their Master Agreement (union contract) or contact a Union Representative (but note, it has been our experience Union Representatives can be very wrong) .  Since union contracts vary greatly from one unit to another, and can be influenced by local supplemental agreements, we will address the question from the general contemporary and prevailing perspective.  However, individuals should consult their Master Agreements to determine whether there is a contractual provision that provides for representation during counseling sessions.

The short and general answer is:  No.  Bargaining unit employees are not statutorily entitled to Union representation during counseling sessions.  Title 5 USC 7114(a)(2)(B) provides that employees of an agency have a right to representation in connection with any examination of the employee in which the employee reasonably believes the examination may result in disciplinary action and the employee requests such representation.  This is known as Weingarten rights.  Of course, all types of nuances may attach and each situation may be different based on unique facts, local or national agreements, past practice, etc…

The controlling case law addressing this specific question is found in DVA Medical Center, Asheville, NC 93 FLRR 1-1271 , 48 FLRA 849 (FLRA 1993) confirming no statutory right to representation during a counseling meeting. However, labeling a meeting “counseling” does not necessarily establish it as limited to counseling (take note supervisors). An employee is entitled to representation if such meeting contains Weingarten elements. FAA, St. Louis Tower, 81 FLRR 1-1223 , 6 FLRA 678 (FLRA 1981).

It is also worth noting individual performance counseling sessions do not qualify as formal discussions, triggering a right to representation. Social Security Administration, 84 FLRR 1-1381 , 14 FLRA 28 (FLRA 1984).

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