So Many Appeal Procedures..Which is The Right One?

When does a federal employee have a right to appeal to the MSPB and when does the appeal have to go through a negotiated grievance procedure? A federal employee picked the wrong appeal avenue and loses.

A recent appeals court decision in a reduction in force situation underscores the importance of understanding the impact of a collective bargaining agreement on the employee’s right of appeal to the Merit Systems Protection Board. (Nowak v. Merit Systems Protection Board, U.S.C.A.F.C. No. 06-3063 (non-precedent), 5/2/06)

Tammy Nowak worked for the Army as a Boiler Plant Operator at Fort Richardson, Alaska. She was separated by RIF and appealed her separation to the Board. (Nowak v. Dep’t of the Army, No. SF-0351-04-0829-I-1 (M.S.P.B. 3/9/05)) The Administrative Judge ruled that the Board did not have jurisdiction, the full Board denied her petition for review, and she moved on to the appeals court.

Ms. Nowak cited to the court the law and regulation that gives the right of appeal from a RIF action. What she apparently did not understand—but has now had clearly explained to her in both the Board’s and the court’s decisions—is that this right of appeal “is affected if the employee is covered by a collective bargaining agreement.” (Opinion, p. 2)

The court patiently holds forth on federal labor law 101, pointing out that where the grievance procedure of the collective bargaining agreement covers a RIF, then those procedures are the “exclusive administrative procedures for resolving grievances falling within…coverage.” (Opinion, p. 3, citing 5 U.S.C. Section 7121(a)(1)(2000))

Continuing with the tutorial, while RIF appeals could be excluded from the grievance procedure—thus permitting the employee to appeal to the MSPB—that was not specifically done in the union’s agreement covering Ms. Nowak. Therefore, the MSPB did not commit error when it dismissed her appeal for lack of jurisdiction. (Opinion, p. 3)

In short, Ms. Nowak is stuck with the negotiated grievance procedure as her only avenue to challenge her separation under the RIF.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.