Know Your Rights
Thursday, September 09, 2010

Third Party Proceedings: Witnesses for the MSPB

In situations where bargaining unit employees are being interrogated by an agency representative in preparation for a proceeding before a third party where the union is either a party to the proceeding or acting as a representative, the agency representative must comply with the following safeguards to mitigate the potentially coercive effects of the interview:

  • Inform the employee of the purpose of the questioning;
  • Inform the employee that his/her participation is voluntary and that no reprisal will occur if he/she refuses to participate in the preparatory interview;;Ensure that the questioning occurs in a non-threatening context; and
  • Limit the questioning to the scope of the legitimate purpose of the interview—the questions can only be regarding the relevant facts, it cannot be focused on the union’s strategy.

See IRS, Brookhaven Service Center, 9 FLRA 930 (1982). 

Such interviews constitute formal discussions for the purpose of 7114 (a)(2(A) and, as such, require the right to union representation. Protections are not merely afforded for preparations for meetings related to the negotiated grievance procedure. Meetings in advance of MSPB hearings and ULP hearings are considered to be worthy of these Brookhaven protections. Department of Veteran Affairs, Long Beach CA, 41 FLRA 1370 (1991). Additionally, meetings with bargaining unit employees to discuss formal EEO complaints (including settlement discussions) can be held to be formal discussions, and thus warranting Brookhaven protections, when they are formal in nature. Marine Corp Logistics Base, Barstow, CA, 52 FLRA No. 107 (1997). 

Recently, a question has come up regarding the right of individuals to have representation at a hearing before the Merit Systems Protection Board. An appellant (the employee filing a petition with the MSPB) is a party to the case. As such, he or she may choose any person, who is willing and available to serve, to be his or her representative before the Board. Or, the appellant may choose to represent himself/herself before the Board. See 5.C.F.R. § 1201.31. Such a designation is the choice of the appellant. The union representing the bargaining unit to which the appellant belongs is not, however, the exclusive representative for a statutory appeal before the MSPB. National Treasury Employees Union v. FLRA, F.2d 1165 (D.C. Cir., 1986), 5 U.S.C. § 7114(a)(5). That being said, the agency may not dictate who serves as the individual’s representative. United States Small Business Administration Washington, D.C. and Robert Wildberger 1994 WL 135412 (FLRA). 

As a federal employee, you may be asked to testify at a hearing before the MSPB. While your participation in any preparation before a MSPB hearing is entitled to the Brookhaven protections (i.e. voluntary participation) and the right to a union representative, your rights are slightly different before the Board. Such participation is not voluntary. Every federal agency must make its employees available to furnish sworn statements or to appear as witnesses at the hearing when ordered by the judge to do so. Thus, you may be ordered to participate in a MSPB proceeding. Because an employee is ordered to participate, federal employee witnesses are to be in official duty status (entitled to pay and benefits including travel and per diem) when making statements or appearing before a Board hearing. 5 C.F.R. § 1201.33.  If an employee is denied official duty time, the judge will order the agency to provide such time.

The role of a representative is slightly limited when providing a sworn statement or testimony. When involved in a situation in advance of the hearing, covered by Brookhaven, the union representative has the right to comment, ask questions, or otherwise provide support as long as the representative does not usurp or disrupt the meeting. Department of the Army, New Cumberland Army Depot, New Cumberland PA, 38 FLRA No. 61 (1990). While every witness to a Board hearing has a right to a representative when testifying, the representative of a nonparty witness has no right to examine the witnesses or otherwise participate during testimony. 5 C.F.R. § 1201.32. Thus, a member of the bargaining unit who is not the appellant (i.e. a witness) has the right to be represented at the hearing in a limited fashion. Any representative (provided by NATCA or otherwise) will merely be present at the hearing. They will not be allowed any formal interaction with witnesses, including the individual they intend to represent. 

The sole manner for an individual to receive active representation during a Merit Systems Protection Board hearing is to have “party” status. If a matter is of import to the union as a whole, it may ask to be certified as an intervenor. An intervenor is an organization or a person who wants to participate in a Board proceeding because the proceeding may have an impact on their rights or obligations. In any MSPB proceeding, NATCA would have to request permission to serve as an intervenor. Once certified, an intervenor has the same rights and duties as the parties with two limitations: intervenors do not have a right to a hearing, and permissive intervenors may only participate in matters affecting them. 5 C.F.R. §1201.34.