By Ann Boehm, September 12, 2022
The decision-making entities in Federal employment and labor law have distinct jurisdictional limitations. Based upon some interesting recent decisions from several of these entities, they take those limitations seriously.
The Federal Labor Relations Authority (FLRA) website explains its mission as follows: “The FLRA exercises leadership under the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7101-7135, to promote stable, constructive labor relations that contribute to a more effective and efficient government.” They are the labor law people.
The mission of the Merit Systems Protection Board (MSPB), according to its website, is to “’Protect the Merit System Principles and promote an effective Federal workforce free of Prohibited Personnel Practices.’” They explain that “MSPB carries out its statutory responsibilities and authorities primarily by adjudicating individual employee appeals and by conducting merit systems studies.” They are the performance, misconduct, and whistleblower protection people.
The MSPB’s website also explains what they do not do, such as “[h]ear and decide discrimination complaints except when allegations of discrimination are raised in appeals from agency personnel actions brought before Board. That responsibility belongs to the Equal Employment Opportunity Commission (EEOC).” They are not the discrimination people.
The jurisdictional divisions of labor should be clear, but sometimes employees, unions, and agencies file in the wrong place. The cases below demonstrate the problems with those errant filings.
Let’s start with the FLRA’s recent decision in National Federation of Federal Employees, Local 1998, 73 FLRA 111 (2022). The union filed exceptions to an arbitrator’s award that upheld the removal of a grievant for unacceptable performance.
I assume you astute FELTG readers are thinking: “They can’t ask the FLRA to review a performance-based removal, because that’s within the MSPB ‘s jurisdiction.” And that is correct.
The FLRA explained, “[u]nder § 7122(a) of the Statute, the Authority lacks jurisdiction to review exceptions to an award ‘relating to’ a matter described in § 7121(f) of the Statute” – such as removals for performance that are covered under 5 U.S.C. § 4303. Id. at 112. “Such matters are appropriately reviewed by the Merit Systems Protection Board.” Id.
The FLRA lacked jurisdiction. It dismissed the case.
Another labor law entity, the Federal Service Impasses Panel (FSIP), also had to remind a union and agency that the MSPB handles the merit system. U.S. Army Corps of Engineers, Logistics Activity Center and IFPTE, Local 259, 2021 FISIP 019 (2022). The union and agency went to impasse over proposals discussing “Merit System Principles.” The agency proposed, “The Employer recognizes merit system principles as reflected in 5 U.S.C. § 2301(b).” The Union proposed to spell out the statutory language in 5 U.S.C. § 2301(b).
Relying on jurisdiction, the FSIP ordered the parties to withdraw their proposals. The FSIP explained that the Civil Service Reform Act created the MSPB to enforce the Merit System Principles. Thus, the FSIP explained, “[t]he interpretation of the Merit System principles is best addressed through the numerous MSPB decisions and studies.” Id. No need to include the merit system statutory reference in a collective bargaining agreement.
While the labor law entities were explaining what the MSPB does, the MSPB explained in Edwards v. DOL, 2022 MSPB 9 (2022), what it does not do. The employee claimed to be a whistleblower based upon his disclosures to supervisors about alleged race discrimination.
The MSPB said that allegations of perceived discrimination under the Civil Rights laws are not protected disclosures under the whistleblower laws. Instead, the proper forum for equal employment opportunity retaliation allegations is the Equal Employment Opportunity Commission. Id.
What’s the lesson to be learned from these cases? Pay attention to jurisdiction! It matters! It may be the easy way to win a case. And that’s Good News. Boehm@FELTG.com