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Should federal employees be wary of arbitration?

On Behalf of | May 17, 2022 | Employee Disputes

As a federal employee, if you have an issue to resolve with your agency, you might ask for your union representative’s support. You have this right thanks to Section 7 of the National Labor Relations Act (NLRA). And thanks to this right, your union rep can accompany you and advise you through tense meetings with superiors in your agency.

However, it’s important to understand that the decisions you and your union rep make in these meetings may have lasting legal consequence. This was highlighted by a recent decision from the Merit Systems Protection Board (MSPB). After one employee and her union rep arbitrated their dispute with her agency, the MSPB dismissed her appeal.

When can employees appeal after arbitration?

If you have a dispute or a concern with your agency, you want to know your options. It helps to understand the process before you take any actions. That way you can avoid stumbling over obstacles that you placed in your own path.

Unfortunately, the MSPB decision suggested the employee sabotaged her own efforts. There were three criteria she needed to meet to appeal her arbitration. She needed to establish:

  • That the Board would generally have jurisdiction over the subject of her grievance
  • That she raised a claim of discrimination during arbitration or was raising such a claim with the Board for the first time because she was unable to raise it during arbitration
  • That the arbitration had reached a final decision

In this employee’s case, the MSPB said she had satisfied the first and third requirements. However, she had failed to properly raise the discrimination complaint during arbitration. The documentation she submitted for review only listed it as a topic. It did not show that she’d addressed the matter in the same level of detail with which she’d addressed similar concerns. Because of that oversight, the MSPB said it did not have the jurisdiction to take her appeal.

It’s important to keep your options open

The MSPB opinion suggested the woman took several good steps along the way. However, it also illustrated how she could have benefitted from more experienced counsel.

Headed into a meeting with agency superiors, the employee wisely sought a Weingarten representative to join her. As a result, when the agency proposed the employee’s removal, her union pushed back. This led to arbitration, and the employee came out of arbitration with a suspension instead of removal.

The problem was that every step in the process sends ripples farther down the line. The employee’s actions in the arbitration didn’t just affect the arbitration. They impacted her ability to appeal later. The arbitration was her one chance to properly raise her discrimination complaint. She didn’t try hard enough, and that blocked her later appeal.

Navigating these matters can be something like driving through a foreign city. Every intersection offers a chance to go the right way or the wrong one, and many lead to dead ends. You can’t afford to go into the process blind. The right guide is critical. So long as you don’t get lost, you can keep your options open.


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