7 Questions to Ask Before Choosing Between a Union Grievance and an MSPB Appeal Under Virginia Federal Employee Law
If your agency removes you, suspends you for more than 14 days, or cuts your grade or pay, and you belong to a bargaining unit, you may have two ways to challenge it: a union grievance or an appeal to the Merit Systems Protection Board (MSPB). Under Virginia federal employee law, as everywhere in the federal service, you generally get one or the other, not both. These seven questions can help you choose, followed by five firms near Vienna that handle these cases.
What Should You Ask Before Choosing Under Virginia Federal Employee Law?
1. Can my case go to both forums?
Only if the action is appealable to the MSPB and your union contract doesn’t exclude it. For removals, long suspensions, demotions, and performance-based actions, 5 U.S.C. § 7121(e) lets you pick either path. Your choice becomes fixed once you timely file a written grievance or an MSPB appeal, whichever comes first.
2. Does my contract exclude this type of action?
Check before you file. Collective bargaining agreements can remove certain matters from the grievance procedure (5 U.S.C. § 7121(a)). If your contract excludes removals, for example, the MSPB is your only route for that action.
3. Who controls the case?
At the MSPB, you do. You can hire your own attorney, and an administrative judge hears the appeal. In the grievance process, the union is your representative, and generally only the union or the agency can invoke binding arbitration (5 U.S.C. § 7121(b)). If the union declines to take the case to arbitration, your grievance may end there.
4. Does the case involve discrimination?
If so, you have a mixed case, and the election rules shift. Under 5 U.S.C. § 7121(d), you choose between the grievance process and the statutory EEO or MSPB route. Raising discrimination in a grievance still preserves some review, since you can ask the MSPB, and then the EEOC, to look at an arbitrator’s decision on that issue.
5. Does it involve whistleblower reprisal?
Then you have three options instead of two. Under 5 U.S.C. § 7121(g), you can choose an MSPB appeal, a grievance, or a complaint with the Office of Special Counsel (OSC). An OSC complaint can lead to an individual right of action appeal at the MSPB if OSC doesn’t secure relief.
6. Which deadline comes first?
An MSPB appeal is generally due within 30 days of the action’s effective date (5 C.F.R. § 1201.22). Grievance deadlines are set by your contract and are often shorter. Pull your agreement and count the days as soon as you receive the decision letter.
7. What review is available afterward?
Both paths apply the same legal standards. In Cornelius v. Nutt, 472 U.S. 648 (1985), the Supreme Court held that arbitrators must follow the rules the MSPB would apply. After an MSPB initial decision, you can petition the full Board within 35 days and then seek court review, generally in the U.S. Court of Appeals for the Federal Circuit. Arbitration awards on these actions also go to the Federal Circuit rather than the Federal Labor Relations Authority.
Which Firms Near Vienna Handle Grievance and MSPB Decisions?
These five firms work with employees in Vienna, Tysons, and the surrounding Northern Virginia area:
- The Mundaca Law Firm
- HKM Employment Attorneys
- The Lipp Law Firm, PC
- National Security Law Firm
- Hogan & Pritchard, PLLC
1. The Mundaca Law Firm: Virginia federal employee law
The Mundaca Law Firm represents federal employees throughout Virginia in MSPB appeals of removals, suspensions, and demotions, and advises employees deciding between a grievance and a statutory appeal before that election becomes final. The firm also handles EEO discrimination and retaliation complaints, whistleblower complaints before the Office of Special Counsel, security clearance matters, and settlement negotiation. Francisco E. Mundaca, Esq., Founding Partner, leads the firm, which has an office at 8000 Towers Crescent Drive in Tysons.
2. HKM Employment Attorneys
An employment law firm with an office in Arlington.
3. The Lipp Law Firm, PC
A Fairfax law firm that handles employment matters.
4. National Security Law Firm
A Washington, D.C. law firm that works with federal employees.
5. Hogan & Pritchard, PLLC
A Fairfax law firm whose practice areas include employment matters.
How Do You Make the Right Choice?
The grievance-or-appeal decision is usually permanent, and it often has to be made within a few weeks of a removal or suspension. Look at your contract, your deadlines, and whether discrimination or whistleblowing is part of the story before you file anything. If you are weighing both options, talk with an attorney who practices Virginia federal employee law while both paths are still open.
This article provides general information and is not legal advice. Reading it does not create an attorney-client relationship.