Do I Have a Right to Union Representation During a Counseling Session?
- InformedFED Chief
- May 16, 2019
- 3 min read
Updated: 2 hours ago
A common question for federal bargaining unit employees is whether they are entitled to have a union representative present when their supervisor calls them in for a counseling session. The answer, while seemingly straightforward, depends on the specifics of the meeting and, critically, on your union contract.
The short and general answer, from a statutory perspective, is No. Bargaining unit employees generally do not have a statutory right to Union representation during a meeting strictly defined as a counseling session.
Understanding Your Rights: Weingarten and Formal Discussions- Union Representation
In the federal sector, the right to union representation is primarily governed by two statutory concepts: Weingarten Rights and the right to representation at a Formal Discussion.
1. Weingarten Rights
The statutory right to union representation for federal employees is codified in 5 U.S.C. § 7114(a)(2)(B). This section provides a right to representation in connection with any examination of an employee if:
The employee reasonably believes the examination may result in disciplinary action; and
The employee requests such representation.
This is known as a federal employee's Weingarten right, named after the Supreme Court decision that established the right in the private sector.
The Key Distinction: Counseling vs. Examination
Federal Labor Relations Authority (FLRA) case law has consistently drawn a distinction between a purely counselingmeeting and an investigatory examination that could lead to discipline.
No Statutory Right in Pure Counseling: The controlling case law confirms there is no statutory right to representation during a counseling meeting that does not contain Weingarten elements.
See DVA Medical Center, Asheville, NC, 48 FLRA 849 (1993).
The "Weingarten Elements" Exception: Crucially, simply labeling a meeting "counseling" does not automatically exempt it from the representation requirement. An employee is entitled to representation if the meeting, despite its title, involves an examination where the employee reasonably believes it may result in disciplinary action.
See FAA, St. Louis Tower, 6 FLRA 678 (1981).
💡 Note to Supervisors: Labeling a meeting as "counseling" when its true purpose is to investigate misconduct or develop facts for potential discipline could constitute an Unfair Labor Practice if representation is denied after a proper request.
2. Formal Discussions
The Statute also grants the exclusive representative (the union) the right to be represented at any formal discussionbetween agency management and one or more bargaining unit employees concerning any grievance, personnel policy/practices, or general condition of employment (5 U.S.C. § 7114(a)(2)(A)).
Individual Performance Counseling: The FLRA has determined that individual performance counseling sessions generally do not qualify as "formal discussions," and therefore do not trigger a right to union representation under this section.
See Social Security Administration, 14 FLRA 28 (1984).
The Most Important Document: Your Master Agreement
While the statutory and case law provides the general framework, the absolute first step for any bargaining unit employee is to consult their respective Master Agreement (union contract) or any local supplemental agreements.
Your Union Contract May Provide Greater Rights!
Some union contracts negotiate for rights greater than the minimum statutory rights. Your Master Agreement may contain a specific provision that explicitly grants the right to union representation even during non-investigatory counseling sessions. Always check the contract first.
