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Representation at Performance Discussions

You have just been summoned to see your supervisor. He/She says that he/she wants to talk to about your performance. Do you have a right to have a union representative? The short answer is: it depends. If the discussion is solely about your performance and is in terms of counseling – e.g. pointing out some concerns – then it is more than likely that you will not be entitled to have a union representative present. Under 5 U.S.C. 7114, the right to a union representative does not ripen unless the meeting is an examination of the employee by the manager. In other words, if the manager is not seeking to get information from the employee then such a meeting is not considered to be an examination and, thus, there is no right to a union representative. Further, such performance discussions do not constitute formal meetings and, as such, do not require a union representative. The FLRA has routinely held that individual performance counseling sessions do not qualify as formal discussions.

However, that does not mean that a meeting that involves performance cannot become an investigation. The tone, tenor, and scope of the meeting could change. A discussion regarding performance could become a meeting or an investigation that has disciplinary implications. For example, you may be asked why you took one course of action instead of another prescribed by the Agency. If, during the course of the meeting, it is apparent that discipline will result from the meeting or potential discipline could arise, the Agency is required to stop the meeting and provide a reasonable opportunity to obtain representation. If you believe that a change of this nature has occurred and the Agency has not communicated your right to a representative, nothing prevents you from asking for a union representative at that time during the meeting. Once the request is made, the Agency should grant the request if it is reasonable for an employee to conclude that discipline might result from the investigation. The Agency may continue the investigation without a representative if the employee is informed that there is not possibility of discipline resulting from the meeting. Such an affirmation should be put in writing. If, however, your request is denied and you still believe discipline could result, you should ask that the denial be put in writing.

If still denied, you should continue with the meeting. The old adage of “obey now and grieve later” holds true under these circumstances.