Merit Board: Agencies Must Tell Employees to Pick One Place to File Personnel Action Appeals, and Stick With It
An Air Force civilian worker was never informed that she could not both file a union grievance and have the Merit Systems Protection Board hear her case.
The Merit Systems Protection Board last week found that federal workers are only precluded from appealing adverse personnel actions in multiple forums if they have actually been informed of federal rules preventing the practice.
Michelle Kaszowski, a former civilian employee of the U.S. Air Force, had challenged her 2015 firing before the MSPB after her federal employee union declined to pursue a grievance filed on her behalf to arbitration. But an MSPB administrative judge dismissed her complaint, citing federal rules requiring workers to choose one avenue of appeal and stick with it.
“An employee subjected to an adverse action, such as a removal, and who is covered by a negotiated grievance procedure may challenge such an action by filing a grievance under the negotiated grievance procedure or a [Merit Systems Protection] Board appeal, ‘but not both,’” MSPB wrote. “An employee is deemed to have exercised an option when the employee timely files a notice of appeal under the applicable appellate procedures or timely files a grievance in writing in accordance with the provisions of the negotiated grievance procedure, whichever event occurs first.”
But the board reversed the administrative judge’s decision, stressing that in order for an employee to choose between union and MSPB appeals, they first must know that choosing one precludes the pursuit of the other.
“For an election of an option to be binding, it must be knowing and informed,” the decision stated. “[Nothing] in the record demonstrates that the agency fully explained the consequences of choosing the appeal or grievance procedure. The decision letter did not explicitly inform the appellant that she could raise the matter at issue with the board or under the negotiated grievance procedure, ‘but not both,’ nor did it provide her with notice as to ‘whether the election of any applicable grievance procedure will result in waiver of the employee’s right to file an appeal with the board.’”
The decision’s precedent also would apply in cases where federal workers choose other avenues for appeal, including the Office of Special Counsel or via discrimination complaints before the Equal Employment Opportunity Commission.
The board suggested in a footnote that agencies “may wish” to review and update the language notifying the recipients of adverse personnel actions of their appellate rights to ensure they do not run afoul of the decision. And it remanded the case back to MSPB’s regional office for further review.