WHAT TO DO FOR A DEAD GRIEVANT

Suppose the union challenges an agency’s termination or demotion of a union member and the employee dies before the case is resolved. Is an arbitrator allowed to issue a decision and if s/he does can the decision be enforced? Recently, a terminated employee died before MSPB resolved his case and the agency argued that the case died along with the employee no matter how illegally it treated the employee or how much back pay he was likely to receive. Given that agencies often argue successfully that arbitrators must follow MSPB precedent, it might help union reps to follow the instructions of a new MSPB decision dealing with this situation. 

In Tony Wilson v. Dep’t. of Treasury, Doc. No. PH-0432-17-0273-I-1 (November 2022), the Board held that when an adverse action appellant dies before the case is resolved the case is over unless the employee’s representative or family member substitutes another party for the dead appellant. Here is the holding in the Board’s own words.

The pertinent Board regulation provides that if an appellant dies or is otherwise unable to pursue the appeal, the processing of the appeal will only be completed upon substitution of a proper party. 5 C.F.R. § 1201.35(a); see, e.g., Estate of Kravitz v. Department of the Navy, 110 M.S.P.R. 97, ¶ 2 n.1 (2008) (finding that substitution was proper where an appellant passed away while his appeal was pending and the appellant’s counsel submitted a motion for the widow to be a substitute party); Cole v. Department of Veterans Affairs, 77 M.S.P.R. 434, 434 n.1 (1998) (granting a motion to substitute the administrator of an appellant’s estate, where the appellant died as his petition for review was pending). The regulation further explains that the representative or proper party must file a motion for substitution within 90 days after the death or other disabling event, except for good cause shown. 5 C.F.R. § 1201.35(b).

So, our advice is that should the union be representing an employee before an arbitrator or MSPB and should that employee die before the decision is issued and enforceable, the union had better substitute a “proper party” for the dead employee pronto. Obviously, this is most important in cases involving back pay or other tangible remedies. We could not find any MSPB decision holding that the union itself can be a proper party, which means the union should play it safe and get a surviving spouse or executor substituted.

We understand that a union is very unlikely to ever face this situation, but it never hurts to alert reps to possibilities.