MSPB Rights and Discipline
The Veterans’ Preference Act of 1944 not only benefits veterans during the hiring process; it also guarantees additional rights to employed veterans regarding job security. These rights, which originally applied only to war veterans, provided specific notice and appeal rights in matters of employee discipline. These rights have been subsequently expanded to protect other employees with veterans’ preference, provided they have served one year of current, continuous service. A break in service of one workday during the year disqualifies an employee from these rights. This means CCAs would not be protected unless they worked at least 365 days without a break in service.
According to the Act, a federal employer could not initiate an adverse action against a war veteran without good cause and without first providing 30 days’ written notice of the allegations and an opportunity to respond. The veteran then could appeal the adverse action to the Civil Service Commission.
The Civil Service Reform Act of 1978 dissolved the Civil Service Commission and replaced it with two different agencies: The Office of Personnel Management (OPM) and the Merit Systems Protection Board (MSPB). Appeals of adverse actions that were formerly made to the Civil Service Commission are now made to the MSPB. Veterans should note that the MSPB is not part of the contractual grievance procedure, so NALC does not represent employees in MSPB appeals.
The Postal Service has incorporated this veterans’ appeal process into Chapter 6 of the Employee and Labor Relations Manual (ELM), which states:
666.23 Adverse Action Appeals to the Merit Systems Protection Board
All employees eligible for veterans’ preference and certain other nonbargaining unit employees with one year of current continuous service in the same or similar position may appeal removals, reductions in grade or pay, suspensions of more than 14 days, or furloughs of 30 days or less. The appeal must be made to the Merit Systems Protection Board (MSPB) within 30 days of the effective date of the action. Preference eligible employees may also appeal reduction-in-force (RIF) actions to the MSPB.
Article 16, Section 9 of the National Agreement outlines preference eligible veterans’ rights with respect to the Act and states in relevant part:
Article 16, Section 9. Veterans’ Preference
A preference eligible is not hereunder deprived of whatever rights of appeal are applicable under the Veterans’ Preference Act.
This means preference eligible veterans have two avenues to ap peal a discharge or a suspension of more than 14 days. They may file a grievance under Article 15 of the National Agreement and/or an appeal through MSPB. However, while a preference eligible veteran may appeal the adverse action in both forums, there are limits. Article 16, Section 9 continues and states in relevant part:
...If the employee appeals under the Veterans’ Preference Act, however, the time limits for appeal to arbitration and the normal contractual arbitration scheduling procedures are not to be delayed as a consequence of that appeal; if there is an MSPB appeal pending as of the date the arbitration is scheduled by the parties, the grievant waives access to the grievance-arbitration procedure beyond Step B.
In other words, a veteran’s preference eligible employee may file an initial appeal in a grievance and through MSPB, but a choice between them must be made by the date the Article 15 grievance is scheduled for arbitration. The USPS-NALC Joint Contract Administration Manual (JCAM) states:
MSPB Dual Filings. The Veterans’ Preference Act guarantees “preference eligible” employees certain special rights concerning their job security. (Federal law defines a “preference eligible” veteran at Title 5 United States Code Section 2108; see EL-312, Section 483). A preference eligible employee may file both a grievance and an MSPB appeal on a removal or suspension of more than fourteen days. However, Article 16.9 provides that an employee who exercises appeal rights under the Veterans’ Preference Act waives access to arbitration when they have an MSPB appeal pending as of the date the grievance is scheduled for arbitration by the parties. The date of the arbitration scheduling letter is considered “the date the arbitration is scheduled by the parties” for the purposes of Article 16.9.
EEO and EEO/MSPB Mixed Cases—Dual Filings. Article 16.9 does not bar the arbitration of a grievance where a grievant has asserted the same claim in an Equal Employment Opportunity (EEO) complaint. Nor does it apply where a preference eligible grievant has appealed the same matter through the EEOC and then to the MSPB under the mixed case federal regulations (National Arbitrator Snow, D90N-4D-D 95003945, April 24, 1997, C-16650).
Item 12.a on PS Form 8190, USPS-NALC Joint Step A Grievance Form, asks if there is a companion MSPB appeal. This is to alert all grievance handlers that the employee has filed both a grievance and an MSPB appeal. While the shop steward should answer this question on PS Form 8190 and all parties should be aware of the dual filing, the grievant is responsible for adhering to the time limit to declare which appeal process he or she will pursue.