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Union Representation during EEO Hearings

Q: Am I entitled to a union representative if I am called as a witness at an EEO hearing?

A: No. Equal Employment Opportunity (EEO) hearings are set forth in 29 CFR 1614.108(f) and (g).

The procedures for EEO hearings are covered in 29 CFR 1614. EEO hearings are closed to the public and generally only the complainant, the complainant’s representative, the agency representative, any technical advisors, the administrative judge, and the hearing recorder are permitted in the hearing room. The witness testifying is permitted in the room, but unlike many other administrative hearings, he or she is not permitted to remain at the conclusion of his or her testimony. There are many standard features of an EEO hearing, but there is also a great deal of individual variation among the administrative judges who hold hearings. If there are any questions about the procedures that will be followed in a particular hearing, the judge should be consulted and the procedures clarified.

Because the union is not party to the proceeding, and is without standing in the proceeding, the bargaining unit employee, if called as a witness, cannot be represented by the union at the hearing.

If, however, the agency interviews bargaining unit employees to prepare them as witnesses in a hearing, the Federal Labor Relations Authority (FLRA) has ruled such meetings constitute a formal discussing, which would entitle employees to union representation.

If you are called to an EEO investigatory meeting at any stage in the process, either informal or formal, be sure to contact your facility representative or your regional vice president prior to attending the meeting.