- By Milt x_Zall
- Mar 05, 2000
If you were fired or disciplined by your agency, would you know the appeal
options should you decide the action taken against you was unfair?
Because many people do not, the Merit Systems Protection Board has
proposed changes that would require agencies to spell out federal employees'
choices — and the implications of those choices — if an employee decides
to appeal an agency personnel action.
What are the consequences if an employee files a grievance with an agency,
the MSPB or the Equal Employment Opportunity Commission? And in some cases,
those organizations aren't the only options. For example, many federal employees
who can appeal to the MSPB also may have the right to pursue the matter
under a statutory or a negotiated grievance procedure under a collective
Most executive branch agencies and their employees are subject to the
Federal Service Labor-Management Relations Statute. When an executive branch
worker faces a matter that normally may be appealed to the MSPB and is covered
by the negotiated grievance procedure of a collective bargaining agreement,
the worker may be limited to challenging the matter through the grievance
procedure. However, there are certain exceptions, and this is where having
better information will help employees:
* If the employee is challenging an action based on unacceptable performance,
she can appeal to the MSPB or file a grievance — but cannot do both.
* If the employee claims discrimination, she may appeal to the MSPB
or the EEOC or file a grievance — but not both.
* If the employee claims that an action was based on a prohibited personnel
practice other than discrimination, she may appeal to the MSPB, file a prohibited
personnel practice complaint with the Office of Special Counsel or file
a grievance — but may choose only one of those procedures.
I have commented frequently on situations where employees did not take
the right steps to protect themselves because they were not aware of all
their options. The MSPB's proposed changes are a positive step. Employees
should be aware of their appeal rights, and this rule change will ensure
that they are.
The proposed changes are intended to ensure, for example, that employees
understand the consequences of making a choice between the MSPB appeal procedure
and the grievance procedure. Filing an MSPB appeal often is not the best
way to proceed.
It also is intended to ensure that, where employees may pursue both procedures
(as in the case of certain U.S. Postal Service employees), they understand
that the MSPB will not modify or extend its time limit for filing an appeal
if the employees choose to file a grievance first.
In other words, an employee who decides to file an agency grievance
instead of an MSPB appeal must understand the timetable. The employee runs
the risk of not having time to file an appeal with the MSPB if the grievance
ends unsuccessfully. The employee should know that upfront.