Weingarten and Performance Counseling Don’t Mix
By Barbara Haga, November 15, 2022
Last month, my colleague Ann Boehm wrote a great article The Good News: With Weingarten, The Law Is Enough. I cheered as she discussed the various elements of the Weingarten right and when she suggested that agencies should not agree to anything beyond what the law requires. How is it in management’s interest to add additional notice requirements? If the statute says annual notice is good enough, then, like Ann, I am all about complying with just that.
The basics
Understanding the reasoning behind the Weingarten right helps make it clear when it applies and when it doesn’t. In Department of Justice, Bureau of Prisons, Safford, AZ and AFGE, Local 2313, 35 FLRA No. 56 (FLRA 1990), the Authority quoted from the legislative history of the Civil Service Reform Act (CSRA), where Congress adopted the same framework regarding representation for Federal employees in disciplinary situations that applied under the National Labor Relations Act.
In Weingarten the Court noted that “[a] single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors.” Id. at 262-63. In such circumstances, the Court concluded that “[a] knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview.” Id. at 263. In support of its conclusion that representation could be beneficial to the employer as well as the employee, the Court quoted from an arbitrator’s award that described the representation process as contemplating “that the steward will exercise his responsibility and authority to discourage grievances where the action on the part of management appears to be justified.”
Performance evaluation issues
When leading training sessions for various agencies, I hear some managers say they allow union representatives to participate in performance discussions and performance counseling sessions because they believe it is required. Perhaps, their agencies agreed to such a provision in contract negotiations, or it has become a past practice over time, or perhaps they are allowing the representatives even though their advisors would say it is contrary to their policies.
However, the situation the Supreme Court addressed in Weingarten — a lone employee being questioned by management about events that could lead to a disciplinary action — is quite different than discussions between a supervisor and employee about missing information in a report or whether the employee applied the wrong per diem rate in a travel reimbursement.
The FLRA’s view
The question of whether Weingarten extended to performance conversations arose early after passage of the CSRA. The Authority issued decisions in 1981 and 1982 that clearly indicated that Weingarten was inapplicable to these types of situations.
In Internal Revenue Service, Detroit, MI and National Treasury Employees Union and NTEU, Chapter 24, 5 FLRA No. 53 (FLRA 1981), the Authority dealt with the case of an annual performance review. Mr. Goff was a GS-11 revenue officer whose work was subject to a 100 percent review by his manager. This was a normal process which had occurred in prior years. It included preparation of a form identifying the findings of the manager and then a meeting with the employee to discuss those findings. After prior such evaluations, Goff had to make adjustments on some cases. Prior to the meeting at issue, Goff requested that a union representative be present at the meeting.
The manager denied Goff’s request. As Goff expected, the manager criticized his work and gave him a “critical elements” letter, which was essentially a PIP notice.
The union filed an unfair labor practice charge. The ALJ who heard the case found no violation and the Authority adopted the ALJ’s findings. The ALJ found that the performance review meeting was not an examination and that there was no reasonable basis to conclude that disciplinary action could arise from it. It was noted that the “critical elements” letter was not a disciplinary action, but instead, “… identifies serious work performance deficiencies and does advise the employee what is expected to improve performance to an acceptable level within a specified period of time, at the end of which there will be a further evaluation of the employee’s performance on these identified elements.”
Roughly one year later, the Authority issued its decision in Department of the Treasury, Internal Revenue Service and National Treasury Employees Union and NTEU, Chapter 22, 8 FLRA No. 72 (FLRA 1982). In a similar set of circumstances, Mr. Kotofsky’s cases were reviewed. He had received several written counseling notices that year about deficiencies in his work. His supervisor told him a branch chief was coming in to hold a discussion with him and the supervisor about the unacceptable work results. Kotofsky asked for a representative, which was denied. Kotofsky was not asked to provide responses on any of the case reviews. In fact, neither the branch chief nor the supervisor took notes during the meeting.
The ALJ in this case found that there was no right to representation under the circumstances. The decision includes the following finding:
“The purpose of the meeting was to generally highlight these known deficiencies to the employee and tell him how to raise the level of his performance to expected standards. This was nothing more than a pure counseling session and was remedial in nature; without the requisite investigatory element it did not qualify as an ‘examination of an employee . . . in connection with an investigation,’ even though the employee asked to be represented by the union. The Statute does not provide a right to representation under these circumstances.”
Bottom line
In the situations described in these cases, the Authority found that Weingarten did not apply. If union representation is being allowed in performance meetings, it isn’t because Weingarten makes it so. So, please allow me to echo Ann’s message from last month: Agencies don’t need to go beyond what the law provides. And please make sure your managers know what the limits are. Haga@FELTG.com