Have you been told that the Agency isn’t allowed to recognize your private attorney in an EEOC or MSPB case because the “Union said they can’t”?

With great frequency, many of our clients are being denied their rights to an attorney by an Agency management or human resources individual. Ironically, these management representatives claim that they cannot recognize a Federal employee’s private attorney because the “union” is the “exclusive representative of the bargaining unit”, and therefore no private attorney can represent you. Every time we’re fed that line by Agency managers, labor relations “specialists” or EEO Counselors, we contact the Union and find that this is simply not true.

The problem here is that these labor relations “specialists” misinterpret the statute and the law. As a result, they effectively deny you your constitutional right of due process.

First, Federal Service Labor-Management Relations Statute states at 5 U.S.C. 7114(A)(5): “The rights of an exclusive representative (the Union) …shall not be construed to preclude an employee from being represented by an attorney or other representative, other than the exclusive representative, of the employee’s own choosing in any grievance or appeal action.”

The regulations governing the EEOC process state, at 29 C.F.R. §1614.605(a): “At any stage in the processing of a complaint, including the counseling stage…the complainant shall have the right to be accompanied, represented, and advised by a representative of complainant’s choice”

Lastly, the regulations governing MSPB appeal procedures state that an appellant may choose any representative so long as that person is willing and available to serve. 5 C.F.R. 1201.31

Where Agency managers and labor relations “specialists” run afoul of the law is that they interpret the term “exclusive representative of the bargaining unit” too broadly. They focus on the terms “exclusive representative” and conclude that if a member of the bargaining unit wants a representative – for any issue arising out of the workplace – it has to be the Union.

Simply not true.

They should focus a little more on the “bargaining unit” portion of that phrase – that’s the important one. The union is the exclusive representative of the bargaining unit for matters that arise out of the collective bargaining agreement. Your right to file an EEO complaint or an MSPB appeal does not arise out of the collective bargaining agreement – it is a wholly separate statutory right and your Agency cannot limit your right to choose any more than they can limit your right to file in the first place.

The answer will be completely different if the matter is one that does arise out of the collective bargaining agreement. The only area where an Agency can come close to arguing that you may not hire an attorney of your choice is when you are attempting to bring a grievance under the collective bargaining agreement (the Union contract).

Nobody – no Agency, no Union, nobody – can take away your right to a representative of your choosing before the EEOC or the MSPB. The great irony here is that those LR specialists and managers who complain about Unions until the sun sets are the first to hide behind the Union when a private attorney comes knocking.

I know of one Federal Agency where the contract gave Unions a right to be present during settlement negotiations of an EEO case, even when the employee was represented by private counsel. The Agency attorneys loved it; it gave them a way out of settlement discussions, and a “legitimate” reason to tell the Judge that they couldn’t even talk settlement without the Union’s okay. (What they neglected to tell the Judge that the employee had every right to exclude the Union.)

If someone tells you that you are not entitled to the representative of your choice in an EEOC or MSPB appeal, contact the Attig Law Firm, PLLC, right away. We represent Federal employees in their EEOC, MSPB and OWCP claims against the Federal government. We’d be happy to set your manager or labor relations “specialists” straight.

Footnote: The demon in this all too frequent story is the Agency, not the Union. In nearly every case where an employee has a close affinity with their Union, and where the employee wants to involve their Union in the appeal or complaint process, we make every attempt to involve the Union in the employee’s claim.