MSPB Considers Regulation to Help Union Members Fight Discrimination
by Mark D. Roth, Esq. |
Federal sector bargaining unit members who have been subjected to prohibited discrimination stand to benefit from a regulation change that the Merit Systems Protection Board (MSPB) is considering. Among the long list of proposals for changes to MSPB practices and procedures outlined in 5 C.F.R. Parts 1201, 1208 and 1209 is one addressing appeals to arbitrator decisions.
The Board in March held a regulations review meeting on the proposed changes to its adjudicatory regulations. (For the sake of full disclosure, a colleague, John P. Mahoney, was among a handful of stakeholders asked to comment on the proposed changes at the meeting). The change, which would be established under a new Part 1201.155(d), details the Board’s ability to order parties to submit additional evidence about a claim of prohibited discrimination in arbitration appeals when such claims were not previously presented to the arbitrator, according to a summary chart of the proposals.
Most unionized employees are already allowed to appeal the final decisions of grievance cases relating to prohibited personnel practices involving unlawful discrimination. As the regulation notes, this right is established under 5 U.S.C. 7121. Generally, this regulation does not apply to U.S. Postal Service employees and other employees not covered by chapter 71 of title 5 of the United State Code (e.g., supervisors and management officials).
Sometimes a claim of discrimination is not adequately addressed during arbitration or in the arbitration decision itself. Consequently, the Board notes in its proposed regulation change that there could be an insufficient record about the claim, meaning the MSPB might not have all the facts for a review. The new Part 1201.155 would outline the MSPB’s option to fill in these holes in the case record.
Significantly, the Board’s authority to make the change dates back over 20 years ago. The U.S. Court of Appeals for the Federal Circuit established in Jones v. Dep’t of the Navy (1990) the precedent for this proposed regulation change, according to the summary chart. This case involved a Navy shipyard worker who initially challenged his removal through his union’s negotiated grievance procedures. An arbitrator affirmed the agency’s removal and the employee attempted to appeal this decision to the MSPB. He noted that the agency did not consider the medical factors behind his absences.
In Jones, the Board dismissed the case due to lack of jurisdiction, noting that the worker failed to raise this discrimination claim during arbitration. The Federal Circuit, however, reversed and remanded the Board’s decision. It said “the employee does not have to raise the [discrimination] issue before the arbitrator in order for the board to have jurisdiction to decide it.”
By making a regulation out of this case law, the MSPB clarifies employee appeal rights in discrimination arbitration cases. Union members who have been subjected to prohibited personnel practices based on discriminatory motives should immediately contact a federal labor law attorney. They generally have 30 to 35 days to file an appeal to an arbitrator’s decision. As in any MSPB case, the right to appeal the arbitration decision is the employee’s individual right.
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by Mark D. Roth, Esq. |