Union Corner: Right to Representation During Investigations, Discussions

This article will explore the right to union representation in Agency investigations of employees and formal discussions between the Agency and its employees.

Representation during investigations. The law gives the union the opportunity to be represented at any agency examination of an employee in connection with an investigation if the employee reasonably believes that the examination may result in disciplinary action and requests representation. If an employee does not request representation, the union has no right to participate. Except for an annual reminder, the Agency has no additional obligation to tell employees of this right.

The right to representation during investigations is modeled on the same right private-sector employees have. It was provided to level the playing field and correct the imbalance in economic power between employer and employee. In practical terms, Congress recognized that a lone employee confronted by an employer trying to determine if certain employee conduct deserves discipline might be too inarticulate, fearful, frightened, confused or simply ignorant to make meaningful replies.

For many employees, agency investigatory interviews are inherently intimidating. The union is responsible for more than just representing an employee’s interest. It also represents the interests of the entire bargaining unit by helping ensure that an agency doesn’t initiate or continue a practice of imposing punishment unjustly.

Situations considered investigations include conversations, discussions, interviews, counseling sessions and meetings. The controlling factor is that an agency representative, not necessarily a manager or the employee’s own supervisor, is asking an employee questions in order to elicit explanations and information from an employee. The employee must reasonably believe that his or her answers may result in disciplinary action.

Disciplinary situations include demotions, suspensions and admonishments as well as obvious investigations by supervisors or internal affairs units. In addition, courts have ruled that an examination or investigation within the meaning of the statute includes an employee’s voluntary attendance at a credentials committee meeting to defend suggestions that his or her level of professional performance was substandard and if so found would be grounds for termination.

Finally, an employee must request representation. The request must be sufficient to put the agency representative on notice of the employee’s desire for representation. Statements such as “Maybe I need to see a union rep” or “I would like to speak to a lawyer or somebody to advise me” are sufficient to put an agency on notice.

Once you have made the request in the appropriate setting, both the agency and union must act reasonably to accommodate you. This means that the interview is suspended until a representative is found. At the discussion, the representative is not simply a observer of or witness to or an assistant in presenting facts in the employee’s defense. He or she may actively participate in asking questions, proposing resolutions and suggesting remedies.

Representation at formal discussions. Under the law, the union is given the opportunity to be represented at any formal discussion between an agency and employees concerning any grievance, personnel policy, practices or other general conditions of employment. This provision requires management to give the union adequate prior notice of and an opportunity to present at formal meetings.

The purpose of the provision is to allow the union an opportunity to safeguard the interests of bargaining unit employees as well as the union. A meeting need not include a discussion or discussion period to be a meeting. A meeting called only to make announcements could still be a formal discussion within the meaning of the statute. Meetings that begin informally may develop into a formal discussion. During the discussion the union representative has a right to participate.

Whether a discussion is formal or not is based on the totality of the facts and circumstances. Pertinent factors might include:

• The management level of the agency representative.
• Whether other management representatives attend.
• Where the meeting takes place
• How long the meeting lasts.
• How the meeting is called.
• Whether there is a formal agenda.
• The manner in which the meeting is conducted, minutes of the meeting identifying specific employees and comments.

An example of a formal discussion might be a meeting with an employee in which a third-level supervisor along with lower-level supervisors and representatives from other agency offices are present-especially if the meeting is called by and held in the third-level supervisor’s office, the agenda specified in advance (even if it is unknown to the employee), and someone other than the employee takes notes. On the other hand, a first-level supervisor’s chance meeting with an employee in the restroom leading to a few minutes’ chat might be found not to be a formal discussion.

Finally the subject matter of the discussion must be about a grievance, personnel policy or practice or other general condition of employment. Grievances are grievances. Personnel policies or practices or other general conditions of employment are matters which relate to the workplace or work environment.

Examples listed in the September issue of News Along the Pike were compensation such as overtime, time of work, place of work, performance appraisal, awards, discipline, details, promotions, assignment of work, assignment of offices, training, professional development, discrimination and occupational safety.

Robert Young, M.D., Ph.D., is interim president of Chapter 282, National Treasury Employees Union.