WHEN TO APPEAL AN ARBITRATION LOSS TO MSPB/EEOC, NOT FLRA
FLRA recently reminded union leaders that under 5 USC 7122(a) it does not have jurisdiction to review arbitration decisions involving adverse actions. In AFGE and Dep’t. of Veteran Affairs, 73 FLRA No.4 (2022) it rejected a union’s appeal of an arbitration decision involving an employee’s claim that his resignation was involuntary, aka a constructive discharge. Unfortunately, given how long it took for the FLRA to decide the case the time limit for appealing the decision to MSPB or the courts had long passed – leaving the employee without any appeal rights. Most union locals know that any adverse action arbitration decision can be appealed to a court, but they also know that is expensive. What is not generally known is that some adverse action arbitration decisions can be appealed to MSPB or EEOC in lieu of immediately going to court. Here is a quick overview of when a union has that option.
Title 5 Section 7121(d) spells out an exception to the widely known idea that a union can only appeal an adverse action or unacceptable performance matter to arbitration or the MSPB, but not both. It states,
Selection of the negotiated procedure in no manner prejudices the right of an aggrieved employee to request the Merit Systems Protection Board to review the final decision pursuant to section 7702 of this title in the case of any personnel action that could have been appealed to the Board, or, where applicable, to request the Equal Employment Opportunity Commission to review a final decision in any other matter involving a complaint of discrimination of the type prohibited by any law administered by the Equal Employment Opportunity Commission.
Consequently, MSPB has stated that it has jurisdiction to review an arbitrator’s decision when (1) the subject matter of the grievance is one over which the Board has jurisdiction, (2) the appellant alleged in his grievance that the agency discriminated against him in violation of 5 U.S.C. § 2302(b)(1) in connection with the underlying action, and (3) a final decision has been issued. However, the Board will only take the case if the employee/union either raised a claim of discrimination under 5 U.S.C. § 2302(b)(1) with the arbitrator or raises a claim of discrimination in connection with the underlying action under 5 U.S.C. § 2302(b)(1) for the first time with the Board if such allegations could not be raised in the negotiated grievance procedure. 5 U.S.C. 2302(b)(1) prohibits discrimination based on race, color, religion, sex, or national origin, age handicapping condition, marital status or political affiliation.
Once the Board decides it has jurisdiction to review the arbitrator’s decisions, its review is limited. The Board will modify or set aside such an award only when the arbitrator has erred as a matter of law in interpreting a civil service law, rule, or regulation. Even if the Board disagrees with an arbitrator’s decision, absent legal error, the Board cannot substitute its conclusions for those of the arbitrator. Thus, the arbitrator’s factual determinations are entitled to deference unless the arbitrator erred in his legal analysis, for example, by misallocating the burdens of proof or employing the wrong analytical framework.
However, the Board can only defer to the arbitrator’s findings and conclusions if the arbitrator makes specific findings on the issues in question. If the arbitrator failed to provide a legal or factual analysis to support his findings that the agency did not violate 2301(b)(1), the Board may make its own findings. Typically, that will result in the Board sending the case to one of its regional Administrative Judges for a hearing and decision—which can then be appealed back to the full Board and on to court if necessary.
If you want to see how this all worked in an actual case check out Benoit Brookens, v. Department of Labor, 2014 MSPB 27 Docket No. CB-7121-13-0012-V-1 (April 11, 2014).
