Is This the New MSPB’s First Problematic Decision?

By William Wiley, August 16, 2022

In the humble opinion of this old Board observer, President Biden’s recent appointees to be members of the US Merit Systems Protection Board have done a very good job with the content of the rulings they have handed down since beginning to work this spring. Most practitioners were glad to see anything coming out of MSPB HQ after a five-year drought of decisions. It has been a pleasant surprise to see the direction the legal analyses have taken is well-based and consistent with common sense, upholding much and modifying where necessary.

Save for one. Here’s the fact pattern in Chiovitti v. Air Force, MSPB No. PH-0752-21-0212-I-1 (July 12, 2022)(NP):

1. The employee was removed based on a charge of Conduct Unbecoming.
2. In the decision notice implementing the removal, the Deciding Official (DO) told the employee that he could challenge the removal decision by either filing a) a grievance under the negotiated grievance procedure or b) an appeal with MSPB, but not both.
3. The employee chose to file a grievance in lieu of a Board appeal.
4. The agency denied the grievance on unspecified “procedural grounds” i.e., not on the merits of the charged misconduct.
5. The union, on behalf of the employee, invoked arbitration.
6. The grievance was pending before the arbitrator for nearly a year. After discussions between the agency and union representatives, the union agreed to withdraw the grievance. In exchange, the agency agreed not to contest MSPB’s jurisdiction over the termination.

• While not clear from the opinion, it appears that during the processing of the grievance, the agency was arguing that the matter could not be arbitrated because the employee is a probationer. Perhaps this was the “procedural grounds” on which the agency denied the grievance?
• 5 USC 7121(c)(4) specifically excludes from arbitration any grievance concerning an “examination,” and the probationary period has long been held to be part of the “examination” process for federal employment.
• To add a bit of confusion to all of this, two weeks after the union’s withdrawal of the grievance, the agency representative became aware of an unusual agency-specific procedural agreement that established that the employee was not a probationer, i.e., that he had completed probation/examination and that the merits of the removal indeed could be arbitrated.

7. On appeal to MSPB, the administrative judge dismissed the appeal as filed too late. After all, the termination had taken place over a year previously and the employee’s choice of the grievance procedure precluded a later choice of the MSPB appeal process.
8. On petition for review, the employee argued that good cause existed for excusing the late filing because the DO had provided incorrect information when he told the employee he could file either a grievance or an MSPB appeal.

In deciding the PFR, the new Board members remanded the case to the administrative judge. The issue for the AJ to decide on remand is whether the DO provided “incorrect information” in the decision notice regarding whether the appellant had a right to file a grievance concerning the termination.

OK, wait just a minute.

The employee was in a bargaining unit. Bargaining unit employees have the right to file a grievance. The employee chose to file a grievance. So where is the possibility that the DO provided the employee “incorrect information”?

Well, as they say on the true-crime podcasts, it’s complicated:

• The Board’s decision speaks of a “decision notice.” Although not addressed specifically, with a decision notice, there most probably would have been a “proposal notice.” Those two steps in removing an employee come to us from 5 USC Chapter 75, Subchapter II on adverse action procedures. As the agency appears to have used adverse action procedures to remove the employee, it must have considered him to meet the definition of an “employee” who is entitled to have those due process procedures used: “an individual in the competitive service who is not serving a probationary or trial period under an initial appointment,” 5 USC 7511(a)(1). In other words, not probationary, because in general agencies do not use proposals and decisions to fire probationers.
• Then, when the employee filed a grievance to contest the removal, the agency dismissed his grievance on “procedural grounds.” Unfortunately, the Board’s decision does not specify what those grounds are. Could be that the employee filed his grievance beyond the time limit for initiating a grievance. That’s a common procedural failure that would make the grievance nonarbitrable. Or, it could have been that by this stage, the agency was arguing that the employee’s grievance was nongrievable because he is a probationer. Failure of a probationary period is excluded by law from any statutory grievance procedure.
• Did the agency initially believe the employee to be a non-probationer at the time of removal? That would explain the apparent use of adverse action procedures. And then, did the agency deny the subsequent grievance because it changed its mind and decided to argue that the employee was a probationer not entitled to grieve his removal? We can’t tell from the decision whether that is the case. However, if correct, that would explain why the union was willing to withdraw the employee’s grievance from arbitration and the agency agreed not to contest the employee’s substitute option to appeal to MSPB.

Unusual and complicated situation.Position changes. Mutual misunderstandings. All are within the confluence of federal labor laws and federal removal/termination laws. We can get past all of that. But where does MSPB see that the agency might have violated the employee’s rights by giving him “incorrect information” relative to how the removal could be challenged? He was a bargaining unit employee. The DO was correct to tell him he could file a grievance because bargaining unit employees can file grievances. Could it be that the Board is trying to say that if the employee was a probationer, the DO should not have told him he could file a grievance because a probationer cannot grieve a termination?

If so, that is an untenable dangerous position in which to put the agency, and unfair to both the union and the employee. It is not up to the agency to decide unilaterally whether a bargaining unit employee is a probationer!

Unions and management sometimes disagree on whether a matter is grievable or arbitrable. A union/management relationship is based on the principle that either side may have an opinion different from the other. Happens all the time. The mechanism for resolving those disagreements is the negotiated grievance procedure. In fact, the very first topic that the federal workplace labor law says must be covered by a grievance procedure is that “any collective bargaining agreement shall provide procedures for the settlement of grievances, including questions of arbitrability.” 5 USC. 7121(a)(1). If the DO believed the employee to be a probationer and, therefore, had NOT told the employee he may be able to file a grievance, he would have been potentially depriving the employee and his union of the option of challenging management’s probationary determination through the negotiated grievance procedure.

The law is clear. The merits of the termination of a probationary employee may not be challenged by grieving the matter to arbitration. However, there are several situations in which a union might choose to file a grievance relative to the removal of a probationer, e.g.:

 

• The statutory definition of “grievance” includes “any claimed violation … of any law.” 5 USC 7103(A)(9). If management were to fire an employee during probation because the employee engaged in union activity, that would be an unfair labor practice and a violation of federal law (5 USC 7116(a)). Therefore, a union or employee could file a grievance relative to the termination of a probationary employee if the claim was that the agency had committed an unfair labor practice.
• Perhaps the employee wants to grieve that the circumstances that led to his removal were in reprisal for his whistleblowing. That’s another law violation.
• Does the negotiated grievance procedure cover claims of race/sex/age/etc. discrimination? If so, the terminated probationer might want to pursue a grievance based on one or more of those protected categories.

If this employee was a probationer, the DO had no obligation to inform him of any redress rights at all — MSPB, grievance, or otherwise. At least, not according to government-wide regulations or statute. However, the DO chose to do so anyway. In the alternative, if the employee was beyond probation and thereby entitled to have the DO explain his redress rights to him, it did so when it told the employee he could file either a grievance or an MSPB appeal, but not both.

In either situation, the fact that the employee through his union filed a grievance that was withdrawn prior to arbitration does not lead to the conclusion that the DO made a mistake in the information he provided. The fact that the agency and union came to believe later during the pendency of the grievance that the employee’s removal may be nongrievable, or that in fact the employee is beyond probation and entitled to a full merits appeal to the Board, does not change the election that the employee made.

Did the agency provide misinformation to the employee when it told him he could file a grievance relative to his removal? No, that information is correct regardless of whether the employee was still serving as a probationer or had completed his probation.

The notification that an agency provides that an employee may have the right to file a grievance in no way implies that the grievance will be reviewed on the merits by an arbitrator. Agencies and unions are entitled to disagree as to whether a particular matter is grievable or arbitrable, and to resolve that disagreement through arbitration. The Board’s decision is misplaced in that it remands the case to the AJ for a determination that is unable to be made.

Several years ago, FELTG developed a standardized rights notice that agencies can use to notify employees of the various redress procedures available to them should the agency impose an adverse action. The FELTG rights notice (copy given to all who attend FELTG’s MSPB Law Week seminar) refers the employee to the negotiated grievance procedure with the admonition that the employee should seek advice from a union representative prior to selecting that option. We continue to believe that is the better practice, certainly better than management deciding for the employee and union whether a particular aspect of a disciplinary action can be submitted to arbitration on the merits. [email protected]