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UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C. 20424-0001
 
January 25, 2001

This memorandum discusses the Office of the General Counsel policy on the rights and obligations of unions and agencies in meetings with employees under the Federal Service Labor-Management Relations Statute (Statute). It provides guidance on the types of situations where employees have a right to union representation and where unions have their own right to be represented when agency representatives meet with bargaining unit employees.

Meetings between agency officials and employees are a common-day occurrence in the Federal workplace. The lack of understanding of the legal requirements controlling whether an employee has a right to request union representation or whether a union has its own right to be represented oftentimes results in conflict. Similarly, the actions of the union representative and the lack of understanding of the union's role at these meetings may result in conflict. Such misunderstandings and disagreements have in the past led some agencies to take action to avoid union representation whenever possible or to allow representation when there is no legal requirement to do so under the Statute, and also has led some union's to file unfair labor practice charges when there has been a violation of those rights as well as to file charges when there has been no right to representation.

This Guidance advises the Regions when assisting the parties in understanding when there is an employee right to be represented and a union right to representation when management meets with a unit employee. In addition to discussing the statutory requirements and legal tests for finding a right to representation, the Guidance also provides checklists for supervisors, union stewards, and employees to utilize to determine whether a particular situation gives rise to a right to representation.

As with past Guidances that I have issued, this Guidance addresses the labor relations aspect of the right to representation. The reasons for the establishment of each right are explored so that the parties can understand the purpose of union representation under these situations. The role of the union representative and the agency officials at these meetings also are discussed so that the parties have the same understanding of their respective rights and obligations, resulting hopefully in shared expectations. This Guidance also suggests strategies for the parties to employ to exercise their rights while avoiding conflict and disagreement over those rights. Again, as in past Guidances, this Guidance also identifies legal issues that have not yet been resolved and gives advice to the Regions on processing cases that raise those unanswered issues. Finally, the Guidance contains appendices that present the most significant Authority and court decisions on the legal issues that arise when exercising the right to representation.

This memorandum serves as guidance to the Regional Directors in investigating, settling and litigating unfair labor practice charges that involve the right to representation at meetings. It is also intended to assist parties in exercising those rights and fulfilling their obligations in a manner that results in effectuating the purpose of these rights and without conflict. By understanding the reasons for these rights and the respective roles of the participants at these meetings, the parties will be better suited to avoid conflict over the exercise of these rights and the Regions will be able to assist the parties to resolve those unfair labor practice charges that may be filed, and to successfully litigate unfair labor practice complaints.

I am making this Guidance Memorandum available to the public to assist union officials and agency representatives to avoid and resolve unfair labor practice issues in an expeditious fashion consistent with the requirements of the Statute. This Guidance is a continuation of my Office's commitment to provide the participants in the Federal Service Labor-Management Relations Program with my views on significant topics.[n1] This Guidance reflects my views as the General Counsel of the Federal Labor Relations Authority and does not constitute an interpretation by the three-member Authority.

This Guidance is divided into five parts. Part I -- "When is an Employee Entitled to Representation at Meetings and When is an Exclusive Representative Entitled to Represent Employees at Meetings?" provides a general overview of the types of situations where a right to representation of an employee by a union may attach; Part II --"Formal Discussions," Part III -- "Investigatory Examinations," and Part IV -- "Bypasses, Grievances Under the Negotiated Grievance Procedure and Representation Rights Created by Contract and Past Practices": (a) set forth, respectively, why these rights exist, the legal elements of these representation rights and the role of the union and agency representatives at these meetings; (b) contain question type checklists to allow employees, union representatives and management to determine whether a meeting is a formal discussion or investigatory examination; and (c) present strategies to assist the parties in avoiding conflict on representational issues and meeting matters. The Guidance also contains appendices that highlight the rules of the most significant Authority and court decisions concerning representational rights under the Statute.

Footnote # 1 - Memorandum

Previous public guidance memoranda have been issued on the following subjects: "The Duty to Bargain Over Programs Establishing Employee Involvement and Statutory Obligations When Selecting Employees for Work Groups" (August 8, 1995), "Guidance on Investigating, Deciding and Resolving Information Disputes" (January 5, 1996), "Proper Descriptions of Bargaining Units and Identification of Parties to the Collective Bargaining Relationships in Certifications" (December 18, 1996), "The Duty of Fair Representation" (January 27, 1997), "The Impact of Collective Bargaining Agreements on the Duty to Bargain and the Exercise of Other Statutory Rights" (March 5, 1997), "Pre-Decisional Involvement: A Team-Based Approach Utilizing Interest-Based Problem Solving Principles" (July 15, 1997), "Guidance in Determining Whether Union Bargaining Proposals are Within the Scope of Bargaining Under the Federal Service Labor-Management Relations Statute" (September 10, 1998), "Guidance on Applying the Requirements of the Federal Service Labor-Management Relations Statute to Processing Equal Employment Opportunity Complaints and Bargaining over Equal Employment Opportunity Matters" (January 26, 1999), "Guidance on Developing a Labor Relations Strategic Plan" (September 24, 1999), and "Guidance on Seeking Remedies for Unfair Labor Practices Under the Federal Service Labor-Management Relations Statute" (May 8, 2000). Copies of all of these guidance memoranda can be found at the Office of the General Counsel page on the FLRA's Web-site, www.flra.gov.

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