Reasonable Fear of Discipline
When it is known in advance that the subject of a meeting is to discuss or investigate a disciplinary, or potential disciplinary situation, and/or the employee reasonably believes that the examination may result in disciplinary action against the employee, the employee is entitled to representation under 5 U.S.C. §7114(a)(2)(B) of the Federal Service Labor Management Relations Statute, as well Article 6 of the Collective Bargaining Agreement.
The 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. In essence, a union may have a right to represent an employee even though the agency is not contemplating discipline at the outset of an interview. This legal standard is based on the fact that disciplinary action is rarely decided upon until the results of an inquiry are known. An employee does not have to be the direct or current target of an investigative interview in order to harbor a reasonable fear, or to invoke the Weingarten right.
Whether an employee’s fear of discipline is considered “reasonable” is based on various other factors as well. For instance, even if the agency has some rule or regulation that prohibits the use of information obtained in the interview/meeting in a personnel action the employee may still have a reasonable fear of discipline, particularly if the employee is not told, or otherwise aware, of the regulation. A promise of immunity – a promise that an employee is immune from discipline – does not always undercut an employee’s fear of disciplinary action either. A promise of immunity is likely to remove an employee’s fear of disciplinary action if the agency has a policy that recognizes and grants such immunity, and the individuals granting immunity have the authority to do so. The timing and other attendant circumstances surrounding an interview may be factors in determining whether an employee’s fear of discipline is reasonable.
Upon receiving a request for representation during an investigative interview that an employee reasonably believes could result in discipline, the agency has 3 choices: 1) grant the request; 2) discontinue the questioning; or 3) offer the employee the choice of continuing without a union representative present or foregoing the benefit of continuing the interview.