Union-Filed Grievance Preempts Employee Appeal

A federal employee removed by his agency tried to file an appeal with the Merit Systems Protection Board only to find the Board had no jurisdiction in the case.

The case is Baldwin v MSPB (CAFC No. 2019-2218 (nonprecedential) 3/5/20). The facts are taken from the appeals court decision.

Baldwin was a Materials Handler Leader with the Defense Logistics Agency (DLA), a component of the Department of Defense. His position was within a union bargaining unit. As such, when Baldwin was removed by his agency, he was given two clear choices in the final decision letter for appealing the action. He could either file a grievance under the union’s negotiated grievance procedure with the agency, or he could file an appeal with the Merit Systems Protection Board (MSPB). Time limits were spelled out for each process and the notice made clear that he could choose one process, but not both. One would preclude the other. (Opinion pp. 1-2)

Baldwin’s union representative sent an email labelled “Request for Formal Grievance” to the appropriate agency official designated to receive the grievance. He copied Mr. Baldwin on this grievance email. Setting out the required procedures, the rep requested a meeting to discuss the grievance and indicated a formal signed grievance letter would be forthcoming. In fact, a meeting was held with Baldwin, two union reps, and the deciding management official. Mr. Baldwin joined in by making arguments as to why he should not be removed. However, the deciding official sustained Mr. Baldwin’s removal, and the union invoked arbitration, copying Baldwin on its notice. (p. 3)

A few days later Mr. Baldwin submitted an appeal to the MSPB. Not surprisingly the agency moved to dismiss, arguing the Board had no jurisdiction because Baldwin had foreclosed his appeal right to the MSPB by filing a grievance under the negotiated grievance procedure. The Board’s administrative judge, after giving Baldwin a chance to explain why the Board had jurisdiction, agreed with the agency and dismissed his appeal. The judge was not moved by Baldwin’s argument that it was the union that had invoked a grievance—not him, and that it had done so without his consent. Therefore, he argued, he had made no binding election on his appeal rights.  MSPB dismissed the appeal.

Baldwin tried to convince the federal appeals court when the MSPB ruled it had no jurisdiction to hear his appeal, but he was not successful. He argued to both the MSPB and the court that the union could not elect his appeal route, besides the grievance had been filed a few days late, that he did not sign anything by way of a grievance, that no formal grievance was ever filed in writing, and that while he participated in the grievance meeting with his union representatives, he had not been fully engaged. He argued all of this added up to there had been no election to file a grievance and he should still be free to appeal to the MSPB. (p. 4)

Acknowledging that a grievance could be void if the employee had nothing to do with filing it, the court agreed with MSPB that was not the case here. At no time did Baldwin disavow the union’s actions in submitting a grievance on his behalf during the months-long grievance process. He received the filings, participated in the meeting, offered his arguments to the deciding official, got a copy of the agency’s formal response to his grievance, all without objection. In short, he elected to appeal his removal through his union’s negotiated grievance procedure and therefore the Board did not err when it concluded it had no jurisdiction over his appeal. (p. 7)

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.