5 U.S.C. 7114(a)(3) requires federal agencies to annually inform bargaining unit employees of their rights to representation under 5 U.S.C. 7114(a)(2)(B), which provides:
An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at;
- Any examination of an employee in the unit by a representative of the agency in connection with an investigation if;
- the employee reasonably believes that the examination may result in disciplinary action against the employee; and
the employee requests representation.
The Weingarten right is generally implicated in all examinations of employees in the unit in connection with an investigation that are carried out by an agency official whether the agency official is a management official in the employee's chain of command or - in a broader context - some other representative of the agency such as internal security, command evaluation or certain inspector general (IG) staff. The examination provision, however, requires that the employee must reasonably believe that the examination may result in disciplinary action against her/him and the employee must request representation, unless the agency has negotiated a provision that requires action from the agency that exceeds statutory requirements.
We are also reminded that 5 U.S.C. 7114(a)(2)(A) provides that an exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general conditions of employment. Not to be confused with the Weingarten right, there is no annual notice requirement for this statutory provision; however, we need to remain diligent in its observation.
Generally, fact-finding or investigative interviews involving formal EEO complaints (whether by contractor or government employee) and ADR sessions and/or settlement discussions involving formal EEO complaints should be treated as formal discussions in the above labor relations context and the union should be invited to attend in the absence of other agreed upon arrangements. Exceptions to the general rule should be determined on a case-by-case basis and are likely to be rare.