Frequently Asked Questions !

Neither the union nor the subject is entitled to copies of the file before the investigation is complete.  Article 21, Section G.2 provides that “…the subject of the investigation and the Union will be furnished a copy of the complete investigation (not just the evidence file) and all other relevant and pertinent information which would be provided under the Freedom of Information Act (FOIA) or 5 U.S.C. 7114..." Releasing this information before the investigation is complete would compromise the integrity of the investigation. This would allow witnesses to fabricate their testimony or conform what they say to what other employees testified.             

Q. #2:   In the AFGE Master agreement Article 1, Section 1, it mentions that the consolidated certification covers those previously certified non-professional and professional employees, full-time, part-time and temporary...  Does this mean that where there is an AFGE certification that temps or part-time employees have been automatically included?

No, It must be remembered that the AFGE consolidated unit is made up of a conglomeration of all AFGE recognitions. Some of these recognitions date back to the 60's and new ones are being added every day. Some recognitions may specifically exclude temps and/or part-time, while other facilities, without specific exclusions have excluded them through past practice or may have included them as part of the unit. The quick answer is that if they were not in your unit before the consolidation they are not in it now. The consolidation did not add any employees that were not already in your unit.    

Q. #3:   Can non-bargaining unit employees (supervisors, managers, unrepresented employees, employees represented by another labor organization at the facility) have union dues taken out as a deduction rather than as an allotment?

Yes, Under OF Bulletin 02GA2.01 dated October 30, 2001, non-bargaining unit employees can now have monies taken out as dues.  This same bulletin also provides for the deduction of dues for professional organizations.    

Q. #4:   Does the Federal Mediation and Conciliation Service (FMCS) have final and binding authority to direct a settlement at the bargaining table?

No, The FMCS provides mediation services and tries to help parties work out a settlement.  

Q. #5:   Must the union represent the interest of all bargaining unit employees regardless of membership in the union?

Yes, The union, with respect to matters over which it has exclusive control or jurisdiction, must represent all employees in the bargaining unit regardless of whether they are members of the union.  

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PART II.

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

Q. #1:     What are the sources of the right of unions to represent unit employees at meetings with agency officials? 

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. 

Q. #2:     What is a formal discussion? 

Meetings between one or more unit employees and agency officials, where all of the conditions set forth in section 7114(a)(2)(A) of the Statute have been met, are called formal discussions. The union that represents the bargaining unit has the right to represent unit employees at those meetings. Formal discussions usually involve meetings that are scheduled in advance by an agency to meet with a group of employees to discuss general concerns and events occurring in the workplace, although they also involve discussion of a grievance with one employee. 

Q. #3:     What is an investigatory examination? 

An interview of a unit employee by an agency representative to discover information as part of an investigation into a workplace matter, where all of the conditions set forth in section 7114(a)(2)(B) of the Statute have been met, is an investigatory interview. If requested by an employee, there is a right to union representation at the exam. These types of situations usually involve agency inquiries into allegations of misconduct at the workplace. 

Q. #4:     What is a bypass? 

A bypass is when an agency deals with unit employees directly, regardless of whether it has afforded the union an opportunity to be present as the employees' representative, when it should only be dealing with the union as the exclusive representative. A bypass usually involves situations where an agency attempts to bargain directly over conditions of employment with unit employees rather than solely with the union. 

Q. #5:     What is the right to representation when a grievance is filed? 

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 deal alone with the employee. 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 and the employee can have no other personal representative. 

Q. #6:     What is a contract right to representation? 

Parties may provide in their contract for situations where an employee has a contractual right to union representation in addition to the representational rights contained in the Statute. Parties may also define in their contract how they will exercise and implement their statutory rights. 

Q. #7:     What is the establishment of representation rights by practice? 

Parties may establish representational rights through their past conduct. This is similar to the establishment of other conditions of employment by past practice that cannot be changed without fulfilling the statutory bargaining obligation. 

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PART III. 

FORMAL DISCUSSION 

Q. #1:     What is the purpose of the formal discussion right? 

The Statute grants a union the right to be represented at a formal discussion in order to represent the institutional interests of the exclusive representative. The intent is that the union's presence and participation will enable the meeting to be successful and productive by, for example, asking questions to clarifying the matters being discussed and avoiding misunderstandings. 

Q. #2:     What are the elements of a formal discussion? 

In order for the section 7114(a)(2)(A) formal discussion right to exist, there must be: (1) a discussion; (2) which is formal in nature; (3) between at least one or more agency representatives and one or more unit employees or their representatives; (4) concerning any grievance or personnel policy or practices or other general condition of employment. 

Q. #3:     Does there have to be an actual dialogue or debate between agency officials and employees for a discussion to occur? 

No.     A meeting is synonymous with a discussion so a meeting for the sole purpose of making a statement or announcement, rather than to engender dialogue, is a formal discussion. 

Q. #4:     What makes a discussion formal? 

The Authority examines the purpose and nature of a discussion, as well as the manner in which the meeting was arranged and conducted to determine whether a discussion is formal in nature. Formality is distinguished from impromptu, on the job discussions, and discussions involving one employee and a supervisor about such matters as performance. 

Q. #5:     What are some of the factors the Authority examines to decide formality? 

Some of the factors the Authority examines are: (1) the status of the individual who held the discussion; (2) whether any other management representatives attended; (3) the site of the discussions; (4) how the meetings for the discussions were called; (5) how long the discussions lasted; (6) whether a formal agenda was established for the discussions; and (7) the manner in which the discussions were conducted. 

Q. #6:     Who must participate for there to be a formal discussion? 

A representative of the agency must participate in a meeting with unit employees to trigger a union representational right 

Q. #7:     What has to be the subject matter to be a formal discussion? 

To be a formal discussion, the meeting must concern either "any personnel policy or practices or other general condition of employment" or a "grievance." 

Q. #8:     What is "any personnel policy or practices or other general condition of employment"? 

"Any personnel policy or practices" are general rules applicable to agency personnel. A "general condition of employment" concerns conditions of employment affecting unit employees generally. 

Q. #9:     What is a "grievance" for purposes of formal discussions? 

The term "grievance" for formal discussion purposes is defined in the section 7103(a)(9) broad statutory definition. Thus, the initial, informal stages of a grievance procedure and statutory appeals have been found to be grievances for formal discussion purposes. 

Q. #10:     Does an actual grievance have to be filed? 

No.     To be considered a "grievance" for purposes of a formal discussion, the matter does not have to be subject to the negotiated grievance procedure. 

Q. #11:     Can a meeting in progress change into a formal discussion? 

Yes. A meeting that does not begin as a formal discussion, may nonetheless develop into or become a formal discussion once all of the elements have been met. 

Q. # 12:     Is a potential grievance sufficient to trigger the formal discussion right? 

There are differing views. One view is that a potential grievance is sufficient to trigger the formal discussion right. The other is that to be a grievance for formal discussion purposes, there is a need to be either a meeting that takes place where a final decision has been made by the agency, a statutory procedure has been invoked, or an informal or formal negotiated grievance has been filed. 

Q. # 13:          What type of notice of the meeting has to be given by the agency to the union? 

The Statute requires prior notification so that the union has the opportunity to choose its own representative. Thus, "actual representation" at the meeting is not sufficient if the union did not have sufficient notice to choose its own representative. However, where a union official receives "actual notice" of a meeting, but does not receive "formal notice" as a union representative, the Authority determines whether that receipt was sufficient to establish that the union had an opportunity to designate a representative of its own choosing and to be represented. 

Q. # 14:     To what extent can a union representative participate at the meeting? 

The right to be represented encompasses the opportunity to speak, comment and make statements, although it does not extend to taking charge of, usurping or disrupting the meeting. 

Q. # 15:     What is the remedy for a formal discussion unfair labor practice? 

In addition to a traditional cease and desist order and a remedial posting, the Authority affirmatively orders the agency to provide prior notice to the union and the opportunity to be represented at any formal discussions. A nontraditional remedy for a formal discussion violation is to re-hold the meeting to enable the union to ask questions and make comments as if it had been given notice of the meeting and an opportunity to actively participate, as required by the Statute or to convene a meeting among the unit employees who attended the formal discussion on duty time at the same location and for the same time period to allow the union to respond to the discussion at the meeting and answer employee questions about the subject matter. 

Q. # 16:     What are the roles of the parties at a formal discussion? 

An agency representative's role is to conduct the meeting and accomplish its purpose, whether it is to merely impart information to employees, give guidance or instructions, or obtain employee feedback on work- related issues. The union's role is to actively participate on behalf of the unit employees and present, as appropriate, its institutional perspective. 

Q. # 17:     What are some strategies to avoid formal discussion conflict? 

These are some suggested strategies to implement the formal discussion right without creating conflict: 

a.     The union designates certain officials to receive notice of formal discussions. 

b.     Should a union learn of a scheduled formal discussion, whether or not the union believes the notice was proper, the union should inquire of the agency, rather than not attend and claim lack of notice. 

c.     The parties can engage in a constructive dialogue in an attempt to accommodate their respective interests when the union claims that the representative of choice is unavailable for the scheduled date of the meeting. 

d.     Agencies share with their union counterpart information that will enable the union to be an effective participant at the meeting to ensure a successful meeting. 

e.     The parties jointly decide how they will implement the formal discussion right, such as developing a protocol so that disputes about the degree, timing and character of the union's participation does not become an issue for disagreement, conflict and litigation, overshadowing the importance of the subject matter of the meeting. 

f.     An agency during the meeting makes it clear that it is aware of its responsibilities under the Statute and contract and intends to fulfill those obligations with respect to the subject matter. 

g.     The parties agree to a useful pre-arrangement regarding notice, sharing information and participation at routinely scheduled formal discussion meetings. 

h.     The parties agree upon a protocol to identify factors to guide them on how notice is given and meetings are scheduled. 

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PART IV. 

INVESTIGATORY EXAMINATIONS 

Q. # 1:     What is a "Weingarten Right"?  

The name taken from a private sector case. Refers to the right of a bargaining unit employee to be represented by the union specific circumstances. That right exists when (1) the employee is examined in an investigation (an investigatory examination) conducted by an agency represetative, (2) the employee reasonably believes disciplinary action against him or her may result, and (3) the employee requests union representation.

Q. # 2:     What is the purpose of allowing a union representative at an investigatory examination? 

The purpose of allowing an employee in an investigatory examination situation to seek union representation is to ensure that the agency can accomplish the purpose of the investigation -- to obtain all of the relevant facts and explore all issues regarding the matter under investigation. 

Q. # 3:     What are the elements of an investigatory examination? 

In order for the section 7114(a)(2)(B) investigatory examination right to exist: (1) there must be a meeting between an employee and a representative of the agency; (2) the meeting must constitute an examination in connection with an investigation; (3) the employee must reasonably fear discipline; and (4) the employee must request union representation. 

Q. # 4:     Does the right to representation extend to all employees covered by the Statute? 

No.     The investigatory examination right to representation applies only to employees in a bargaining unit. 

Q. # 5:     Does the right to representation provide for the unit employee to choose his/her own representative? 

No.     The right does not extend to any representative other than the union that exclusively represents the appropriate bargaining unit. The union designates the individual to serve as its representative at a particular examination. 

Q. # 6:     Are there any restrictions on whom the union can select as its representative? 

Sometimes. The presumption that a union can designate the particular individual it wants as its representative may be rebutted where the agency can demonstrate "special circumstances" establishing harm to the integrity of the interview by allowing a specific union representative. 

Q. # 7:     Does the agency representative have to be an employee of the same agency as the employee being examined? 

No.     An agency is responsible for the conduct of investigators who are not part of the organizational segment where the investigation occurs and the employee is employed, but rather who are employed by another office within the same agency or by another agency within the same Federal Department. 

Q. # 8:     Are agents of an Office of Inspector General representatives of an agency for investigatory examination purposes? 

Yes. The Supreme Court affirmed the Authority's and the Eleventh Circuit's decisions that an Office of the Inspector General investigator is a "representative of the agency" when examining a bargaining unit employee within the meaning of section 711(a)(2)(B) of the Statute. 

Q. # 9:     Does the investigatory examination right to representation extend to criminal investigations? 

Yes. The investigatory examination right to representation extends to criminal investigations. 

Q. # 10:     Can there be an investigatory examination if the exam involves outside law enforcement officials, such as the local sheriff's office or the Federal Bureau of Investigation? 

The General Counsel does not view outside law enforcement officials, such as the local sheriff's office or the Federal Bureau of Investigation as representatives of an agency, and therefore no representational right would attach. However, the participation of an agency representative in that exam may satisfy the requirement that the interview be by a representative of the agency. 

Q. # 11:     What is an examination in connection with an investigation? 

Factors such as whether the meeting: (1) was designed to ask questions and solicit information from the employee; (2) was conducted in a confrontational manner; (3) was designed to secure an admission from the employee of wrongdoing; and/or (4) required the employee to explain his/her conduct are examined to determine if a meeting is an investigatory examination. 

Q. # 12:     Are performance meetings and counseling sessions investigatory examinations? 

Generally no. Meetings conducted for the sole purpose of informing the employee of a decision which has already been reached, or for counseling an employee on individual performance, are not examinations. 

Q. # 13:     Can a meeting that starts off as not being an investigatory examination change into an exam? 

Yes.     The title or characterization of the meeting given by a manager to describe a meeting does not control whether the meeting, in fact, is an investigatory examination. A meeting that starts off as a performance counseling session may turn into an examination dependent upon the dialogue and dynamics of the meeting. 

Q. # 14:     How is a reasonable belief of discipline established? 

A reasonable belief determination is based on an evaluation of objective, rather than subjective factors. A reasonable belief of discipline can be found even if the agency did not contemplate discipline at the time of the exam. It is the possibility rather than the inevitability of future discipline that determines the right to representation. 

Q. # 15:     What constitutes an employee request for union representation? 

An employee's request for representation must be sufficient to put the employer on notice of the employee's desire for representation and need not be made in any specific form, but rather depends upon the facts of each case. 

Q. # 16:     What are the agency's options when there is a request for a union representative at an investigatory examination? 

If an employee makes a valid request for representation, an agency has three options: (1) grant the request, (2) discontinue the interview, or (3) offer the employee the choice between continuing the interview without representation or having no interview. If, after having been given the option of continuing an interview without representation or having no interview at all, an employee elects to continue without representation, the right to representation has been waived. 

Q. # 17:     How can a union representative participate at the examination? 

The union representative at an investigatory examination has the right to take an active role. This includes the freedom to assist and consult with the affected employee. However, there is no per se right to engage in private conferences outside the presence of an investigator during the exam. Moreover, the union's involvement cannot interfere with the legitimate interests and prerogatives of the agency in achieving the objective of the examination, preserving the integrity of the investigation, and avoiding an adversarial contest. 

Q. # 18:     Does the union have any right to information about the examination? 

Information requested in connection with a union's representation of an employee at such an investigation is relevant to the representational function of the union under the Statute. However, there is no general right to discovery and the agency need not reveal its case nor the information it thus far has obtained. Rather, the union has a right to become familiar with the employee's circumstances and to effectively assist the examined employee and participate in the interview. 

Q. # 19:     What is the remedy for an investigatory examination unfair labor practice? 

In addition to a traditional cease and desist order and a remedial posting, if the employee was disciplined, the agency is ordered, upon request, to repeat the investigatory interview and to afford the employee full rights to union representation. After repeating the investigatory interview, the agency reconsiders its decision and either makes the employee whole or grants new appeal rights. 

Q. # 20:     Can the remedy ever rescind disciplinary action? 

Where a disciplinary action has been taken because the employee asserted the right to representation at an investigatory interview, the remedy would be a traditional make-whole order. 

Q. # 21:     What are some strategies to avoid conflict over investigatory examinations? 

These are some suggested strategies to implement the investigatory examination right without creating conflict: 

a.     Train employees to make clear requests for union representation. 

b.     Train agency officials to differentiate a denial of a request for a union representative from a statement that the agency does not believe a representative is required under the circumstances. 

c.     Train agency officials to understand the options when an employee requests union representation. 

d.     Come to an understanding concerning the identity of the representative and the scheduling of the examination. 

e.     Share information prior to an examination. 

f.     Clarify the role of the union representative. 

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PART V. 

BYPASSES, GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, AND REPRESENTATION RIGHTS CREATED BY CONTRACT AND PAST PRACTICES 

Q. # 1:    What constitutes a bypass of the exclusive representative? 

In certain situations, an agency must deal only with the union that exclusively represents the bargaining unit employees. The agency may not deal with the employees directly, even if the agency offers the union an opportunity to be present and to actively participate. Rather, the union can insist that the agency only deal with it. The failure of an agency to deal only with the union under these circumstances is a bypass and an unfair labor practice. 

Q. # 2:     What are some examples of when the agency must deal only with the union? 

One example is a meeting over a grievance under the parties' negotiated grievance procedure. Another is when an agency deals with employees over matters, such as a new parking policy, that should be bargained with the union or when an agency is bargaining with a union but then starts to deal with the employees over the same matter. 

Q. # 3:     What are some strategies to avoid bypass situations? 

It is sometimes difficult for parties to distinguish an agency's unlawful bypass of an exclusive representative from a lawful agency communication or a meeting with unit employees. One strategy is simply to refrain from meeting alone with any employee involved in a grievance filed under the negotiated agreement. Also, an agency should keep the union informed of its intentions to communicate with unit employees over conditions of employment. Many times, a bypass allegation accompanies situations where a union is not given the opportunity to be present at a formal discussion. 

Q. # 4:     What is the right to representation in a grievance filed under the negotiated grievance procedure? 

When a union files a grievance on behalf of an employee, the agency is required to deal only with the union over all matters pertaining to that grievance. Any dealing with the employee in the absence of the union would be a bypass of the union, as well as a formal discussion violation. If an employee elects to file a grievance on his/her own behalf, the union would not be the representative of the employee for purposes of the grievance, but still must be afforded the opportunity to be present during the processing of the grievance. 

Q. # 5:     What are some strategies to avoid disputes over representation at grievances? 

An agency should avoid meeting alone with any grievant who has filed a grievance under the negotiated grievance procedure, whether the grievance was filed by the union on behalf of the employee, or whether the employee filed the grievance and elected to represent him/herself or have the union as a representative. Similarly, once an agency has recognized the union as a representative in a dispute between a unit employee and the agency, the agency should not deal alone with the employee. 

Q. # 6:     How is a right to representation created by contract? 

Parties may negotiate the right to representation into their contract. The parties are free to identify those situations and conditions where union representation is appropriate. As a contract right and not a statutory right, any dispute over the implementation or breach of the right constitutes a grievance and not an unfair labor practice, unless the breach qualifies as a repudiation. 

Q. # 7:     How else can contracts concern the right to representation? 

The parties may also define in their contract how they will exercise and implement their statutory rights, such as the manner in which notice will be given for formal discussions. As with contract rights establishing a right to representation, any dispute over whether a party has complied with a particular contract provision concerning how a statutory right would be exercised would be a grievance and not an unfair labor practice, unless it is a repudiation. However, if a party charges that the other has not complied with a statutory right (rather than the particular contract provision), the contract provision that limits or defines the implementation of that statutory right may be a defense to the unfair labor practice allegation. 

Q. # 8:     How is a right to representation created by practice? 

Parties also 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, as is required before any other established condition of employment may be changed. 

Q. # 9:     What are some strategies to avoid disputes over representation rights created by contract and past practices? 

Any contract rights to representation should be as clear as possible, with a joint bargaining history and examples to guide the employees, union officials, and managers. Similarly, contract language implementing a statutory right or which place some sort of limitation on existing statutory rights should be equally clear. The parties should understand that they are creating contractual rights and obligations and that, absent a repudiation, any unresolved dispute is a grievance and not an unfair labor practice. 

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