Stewards' Status in MSPB Appeals

Recently, the union has received inquiries about the right of stewards to prepare appeals to the Merit Systems Protection Board (MSPB) while “on the clock.” After a review with APWU’s general counsel, the following represents the APWU’s position on this subject matter:

Though stewards have a right to file grievances while on the clock under the provisions of Article 17 of the National Agreement, this contractual right does not include a right to file MSPB appeals on the clock. While acting as an official representative of an employee in filing an MSPB appeal, a steward is not representing the union but is acting in his/her individual capacity as the employee’s representative. Therefore, rules applicable to representation are set out in MSPB regulations. In the case of claims involving discrimination that are filed in the MSPB, EEOC rules may also apply.

MSPB rules do not allow an employee representative time on the clock for representation of another employee before the MSPB. However, under Equal Employment Opportunity (EEOC) procedures, employee representatives may perform their representative duties while on the clock for the most part. Therefore, in the case of mixed cases — that involve both an EEO appeal and an MSPB appeal — the time spent in representing an employee under EEO procedures may be performed on the clock in most circumstances.

The decision of the Federal Labor Relations Authority (FLRA), that MSPB appeals are “grievances” under Title 5 of the United States Code, does not apply to the Postal Service. This is because Title 5 generally has been supplanted by collective bargaining under the provisions of the Postal Reorganization Act.

Appeal procedures in cases involving veterans’ preference rights are different under the National Agreement than they are under Title 5 of the U.S. Code governing federal employees’ rights. Under Title 5, federal employees may not pursue appeals both through their unions’ grievance procedures and the administrative procedures for EEO and MSPB appeals; they are required to elect a forum.

Under the National Agreement and the Postal Reorganization Act, veterans may file both a grievance and an appeal to the MSPB. Although they are only entitled to a single hearing on the merits, both avenues of appeal may be pursued to the point of a hearing in one forum or another. Likewise, postal veterans represented by the APWU who file a grievance and who also have a related EEO claim may pursue both an EEO appeal and a grievance under the National Agreement, although the Postal Service may defer processing the EEO case until the grievance is resolved.

The Postal Service has tried repeatedly to eliminate the right of postal workers to pursue dual appeals. They have tried to obtain this result in negotiations and in interest arbitration, and they have even suggested that this limitation be included in postal reform legislation.

The APWU has resisted these efforts successfully, and we intend to continue the fight for the right to file appeals in every applicable forum.