Background 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.)
Response on Union Representation
We do not know the specific facts and circumstances that would influence our analysis and recommendations. 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. We prefer the average federal employee understand the topic.
The first thing any bargaining unit employee should do when determining whether they have a right to union representation is refer to their respective 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 specifically provides for union 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).
BOOK A FREE CONSULTATION | WHAT WE DO | CONSULTING QUESTIONS | FEE STRUCTURE
The contents of this website (InformedFED.com) are intended to convey general information only and not to provide legal advice or opinions. Consultants at InformedFED are not attorneys. They are senior level practitioners of employee labor relations and EEO. The contents of this website, and the posting and viewing of the information on this website, should not be construed as, and should not be relied upon for, legal or employment advice in any particular circumstance or situation. The information presented on this website may not reflect the most current legal or regulatory developments. No action should be taken in reliance on the information contained on this website and we disclaim all liability in respect to actions taken or not taken based on any or all of the contents of this site to the fullest extent permitted by law. InformedFED is comprised of independent senior level practitioners and consultants who are not employees of InformedFED.