Part 1 -- General Overview

PART I. WHEN IS AN EMPLOYEE ENTITLED TO REPRESENTATION AT MEETINGS AND WHEN IS AN EXCLUSIVE REPRESENTATIVE ENTITLED TO REPRESENT EMPLOYEES AT MEETINGS?


The purpose of Part I is to establish the framework for representational rights in the Federal sector labor-management relations program. This Part provides a general overview of the types of situations where a bargaining unit employee has a right to representation by the exclusive representative at a meeting, and where the union, as the exclusive representative of all bargaining unit employees, has a right to be represented at a meeting. Each of the rights described below are discussed in greater detail in this Guidance where the legal elements for each right are described, with supporting Authority case law.


A.     Representation Rights in General


Union's have a significant right to represent employees at various meetings with agency officials. Federal agencies have a corresponding obligation to allow unions the opportunity to represent employees at these meetings. This right to representation derives from a number of different sources - the Statute, parties' contracts and practice.

The Statute provides for representation in two well established instances when certain conditions have been met: formal discussions and investigatory examinations. The Statute also gives unions and employees the right to representation during the processing of a grievance under a negotiated grievance procedure. In other more limited circumstances, the Statute provides that an agency may not deal directly with unit employees even though a union representative is present, but rather must only deal with the union which represents the employees. If this right is violated, it is called a bypass.

Parties may also create a right to representation through their negotiations or practice. Parties may negotiate the contractual right to representation into their contract. The parties are free to identify those situations and conditions where union representation is appropriate. Finally, parties may create a right to representation through a practice. Under these circumstances, that representational practice may not be modified by either party without fulfilling the statutory bargaining obligation.


B.     Formal Discussions


A formal discussion requires all of the conditions set forth in section 7114(a)(2)(A) of the Statute to be met before the union obtains the right to represent unit employees. One type of formal discussion involves meetings that are scheduled in advance by an agency to meet with a group of employees to discuss concerns and events occurring in the workplace. These meetings usually involve more than one unit employee and the subject matter usually concerns general matters about the work and the workplace. The meeting may consist merely of agency officials providing information to employees, or the meeting may involve an actual dialogue where unit employees ask questions or respond to what the agency officials are saying. These meetings are distinguished from more informal, impromptu on the job discussions between supervisors and employees, which routinely are not formal discussions.

Depending on the topic of the meeting, a formal discussion also can occur with only one agency official and one unit employee. This type of situation usually involves the discussion of a grievance, as that term is described in the Statute. Part II explores the reasons for this right, the particular elements of a formal discussion, the choices an agency has when confronted with such a request, the role of the union representative at the meeting, and the remedy should an unfair labor practice violation occur.


C.     Investigatory Examinations


When an agency determines that it is necessary to interview an employee to discover information as part of an investigation into a workplace matter, employees may have a right, upon request, to union representation. As in formal discussions, in order for this statutory right to attach the elements set forth in section 7114(a)(2)(B) of the Statute must be met. These types of situations usually involve agency inquiries into allegations of misconduct at the workplace. If the employee has a reasonable belief that he/she may be disciplined as a result of the meeting with management, the employee can request to have a union representative present. Part III explores the reasons for this right, the particular elements of an investigatory examination, the choices an agency has when confronted with such a request, the role of the union representative at the examination and the remedy should an unfair labor practice violation occur.


D.     Bypasses


In certain situations, an agency may not deal with unit employees directly even though it has afforded the union an opportunity to be present as the employees' representative. Where an agency deals with employees when it should only be dealing with the union as the exclusive representative, a bypass unfair labor practice occurs. This type of situation is not as common as formal discussions and investigatory examinations, and usually involves situations where an agency attempts to bargain directly over conditions of employment with unit employees rather than solely with the union. Part IV describes when a bypass occurs.


E.     Grievances Under the Negotiated Grievance Procedure


When an employee files a grievance under the process established in the parties' negotiated grievance procedure and designates the union as his/her representative, an agency must deal with the union representative and cannot meet alone with the employee. Most problems arise when, although the employee has been represented and the agency has met with the employee and union representative together, the agency then meets only with employee, usually in an attempt to resolve the dispute.

Even when an employee does not designate the union as his/her representative in a grievance, the union, as the exclusive representative of all bargaining unit employees, must still be afforded the opportunity to be present at any meetings about that grievance. Also, an employee who chooses not to designate the union as his/her representative, has no right to designate anyone else, such as a co-worker or a lawyer, as a representative. Only the union, or its designee, can represent an employee in a contractual grievance. Part IV also covers representation rights when processing contractual grievances.


F.     Contract Representation Right


Parties often provide in their contract for situations, other than statutory formal discussions, investigatory examinations and contractual grievances, where an employee has a contractual right to union representation. These contractual rights and obligations are treated the same as other rights that have their genesis in the contract. Part IV also addresses representation rights created by contract.


G.     Establishment of Representation Rights by Practice


Lastly, parties also may establish representational rights through their past conduct. This is similar to the establishment of other conditions of employment by past practice. For example, an agency may always allow employees to be represented by the union when they are called into a meeting to discuss their individual development plan. Assuming this is not a statutory formal discussion or investigatory examination nor a contract right, the practice may establish a condition of employment that cannot be changed without fulfilling the statutory bargaining obligation. As in all change cases, absent bargaining, any change would be an unfair labor practice. Part IV further discusses representation rights created by practice.