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Right to Representation During Agency Searches

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. 5 U.S.C. §7114(a)(2)(B) also protects the employee’s right to representation during agency searches of an employee’s personal property or space. Although the Union’s presence would not be required at every agency search, a recent FLRA decision (AFGE Local 171, Council of Prison Locals 33 and Department of Justice, Federal Bureau of Prisons, FCI El Reno, Okla., 109 LRP 75592 (FLRA 11/30/09) suggests that the Agency would be required to allow union representatives to be present at agency searches of employees’ personal property within their workstations when there is: 1) a reasonable expectation of privacy; 2) reasonable suspicion; and 3) no overriding exigency exists.

An employee does not automatically surrender his or her expectation of privacy by entering a government facility. If the Agency’s own rules regarding searches indicate that its employees have the right to refuse a search by leaving agency grounds, than the Agency is bound by its own rules and regulations and cannot claim that the employee surrenders his or her expectation of privacy while on government property. Every agency may have its own guidelines for what constitutes “reasonable suspicion” for the purposes of conducting agency searches. With regard to the criteria requiring reasonable suspicion, this element is generally satisfied, however, only if the Agency knows of facts and circumstances that warrant rational inferences that an employee may be engaged in, attempting, or about to engage in, criminal or other prohibited activity. That is, such searches necessitate facts and circumstances warranting rational inferences of illegal activity by someone in the bargaining unit. The right to union representation also cannot excessively interfere with the Agency’s right to determine internal security. Practices concerning how an agency will conduct reasonable suspicion searches of workers’ personal property do affect the right to determine internal security. However, if that practice is tailored to benefit only employees who were adversely affected by the exercise of the management right to determine internal security practices by, for example, ensuring the integrity of the searches and the authenticity of any findings, then the right to union representation during these searches is permissible by law.