UNIONS ARE MISSING OUT ON INTERIM TERMINATION RELIEF
When a union takes an employee’s removal case to arbitration and wins, the agency typically will not reinstate the employee if it decides to file an appeal with the Federal Circuit court. If it does appeal, the employee sits home another 9 to 12 months without an income waiting for the court to decide what to do. But if s/he won reinstatement from MSPB, the agency would have to pay the employee salary and benefits beginning the day after the decision is issued by the MSPB Administrative Judge even if the agency files a court appeal. This does not sound fair, and unions should move to correct it.
When MSPB restarts an employee’s salary and benefits because it overturns an employee’s removal, it does so pursuant to §5 CFR 1201.111. That requires that a judge’s decision include a “statement,.. as to whether interim relief is provided effective upon the date of the decision, pending the outcome of any petition for review….”
Subsection (c) of that regulation defines “interim relief” as follows:
(1) Under 5 U.S.C. 7701(b)(2), if the appellant is the prevailing party, the initial decision will provide appropriate interim relief to the appellant effective upon the date of the initial decision and remaining in effect until the date of the final order of the Board on any petition for review, unless the judge determines that the granting of interim relief is not appropriate. The agency may decline to return the appellant to his or her place of employment if it determines that the return or presence of the appellant will be unduly disruptive to the work environment. However, pay and benefits must be provided.
(2) An initial decision that orders interim relief shall include a section which will provide the appellant specific notice that the relief ordered in the decision must be provided by the agency effective as of the date of the decision if a party files a petition for review. If the relief ordered in the initial decision requires the agency to effect an appointment, the notice required by this section will so state, will specify the title and grade of the appointment, and will specifically advise the appellant of his right to receive pay and benefits while any petition for review is pending, even if the agency determines that the appellant’s return to or presence in the workplace would be unduly disruptive.
Given that this could mean months and months of salary and benefits even if the employee loses at the court, it is something to which unions should pay attention. They can do so by either negotiating a provision into their collective bargaining agreements stating that arbitrators reinstating terminated or demoted employees must address the question of “interim relief” in the same manner as the Board or by including the request as part of the requested remedy whenever presenting an adverse action case to an arbitrator.
There is a long tradition of requiring arbitrators to either comply with Board rulings or to be guided by them. There is no reason why employees should be denied this relief simply because they chose a statutory alternative to MSPB.
