By John V. Berry, Esq., www.berrylegal.com
In certain circumstances, the Merit Systems Protection Board (MSPB) can hear an appellant’s (federal employee) request for a review of a labor arbitrator’s decision. Most arbitration review requests go to the Federal Labor Relations Authority (FLRA) at the request of a union. However, some grievants seek review by the MSPB. In some cases, MSPB review is possible where jurisdiction is found.
MSPB Must Have Jurisdiction for Review
In general, the MSPB has review over a grievant’s request to review a decision under 5 U.S.C. § 7121 (d) when the MSPB has jurisdiction over the “subject matter” of the grievance, the appellant has alleged a claim of discrimination under 5 U.S.C. § 2302 (b)(1), and the arbitrator has issued a final award or decision. When it chooses to review a decision, the MSPB often gives greater deference to decisions issued by arbitrators than they do to decisions issued by their own administrative judges.
In general, in order for the MSPB to have jurisdiction to review an arbitration case, the grievant must have alleged discrimination in combination with the other claims and taken the case to arbitration, where appropriate. Where a union elected not to move forward to arbitration, the MSPB found that a grievance's decision was not appealable as a final decision. Knuckles v. Dep't of the Army, 122 MSPR 519 (2015).
When will the MSPB Reverse an Arbitrator’s Decision
The MSPB will reverse or modify a labor arbitrator’s decision only where the arbitrator has made a mistake of law in interpreting civil service laws, rules or regulations. Hidalgo v. Dep’t of Justice, 93 MSPR 645 (2003). An arbitrator's findings of fact are entitled to deference unless the arbitrator erred in his legal analysis. Cambridge v. Dep’t of Justice, 111 MSPR 152 (2009), If an arbitrator has not made specific findings on a particular issue, the MSPB will not defer to the arbitrator's decision to deny an appellant's review request related to that issue. Hollingsworth v. Dep’t of Commerce, 115 MSPR 636 (2011).
A Few Examples Where Reversal Took Place
This is a sparse area of law and there have not been a significant number of cases of arbitration review. As as result, there are not a number of cases to cite. However, depending on the outcome of a labor arbitration and what has been alleged, it may be a potential avenue of appeal, especially where a union is not willing to take the case to the FLRA. There are many potential examples of potential types of cases, but here are a few reversal case examples:
1. The MSPB reversed an arbitrator’s decision that an appellant was removed for cause. The MSPB determined that the arbitrator failed to address the appellant’s claim of affirmative defense that she had been subject to retaliation by the agency. Marshall v. Dep’t of Veteran’s Affairs, 111 MSPB 5 (2008).
2. The MSPB reversed a labor arbitrator’s ruling which found that an appellant's grievances were not arbitrable and could not be heard. The arbitrator found that the union failed to pursue the grievances as required by their collective bargaining agreement because it failed to timely schedule the appellant's requested oral or written presentations to management officials in support of her grievances. The MSPB determined that the arbitrator improperly construed the CBA, as the MSPB could not find language within the collective bargaining agreement requiring that the appellant make a presentation at the required step of the grievance procedure. Morales v. SSA, 107 MSPR 360 (2007).
3. The MSPB reversed a labor arbitrator's decision finding that an individual that had previously filed an EEO complaint could not appeal her removal matter through arbitration, finding that the arbitrator was wrong as a matter of law. Galloway v. SSA, 2009 MSPB 46 (2009).
4. The MSPB reversed a labor arbitrator's decision regarding a removal based on falsification, finding that the charge had not been proven and that evidence of EEO retaliation was present. Fitzgerald v. DHS, 2008 MSPB 17 (2008).
In sum, when litigating an appeal of an arbitrator’s decision, it is very important to retain legal counsel familiar with the MSPB to determine the best possible appeals options. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at Berry & Berry PLLC Facebook Page.