MSPB ruling could benefit vets who file employment claims

A recent decision by the Merit Systems Protection Board could help hundreds of veterans whose claims under the Uniformed Services Employment and Reemployment Rights Act were halted because of their involvement in a collective bargaining unit.

In a July brief, MSPB called for a reversal of a decision issued in 2007 in Russell v. Equal Employment Opportunity Commission. The board initially concluded that it did not have jurisdiction to hear Ermea Russell's case alleging violation of her rights under USERRA because Russell was involved in a collective bargaining unit.

The board determined it lacked jurisdiction in the case because Russell belonged to a labor union that provided for an administrative resolution with the agency through a negotiated grievance procedure.

But MSPB recently concluded that an exclusivity provision of the law governing labor-management relations for federal employees does not apply to USERRA claims. "The board determined that USERRA specifically superseded any contract, agreement or other matter limiting an appellant's right to bring a USERRA claim to the board," the brief stated.

MSPB's reversal of that decision directly affects the case of Weiberg v. Department of Treasury, in which Dan Weiberg filed an appeal in November 2007 alleging that Treasury, his former employer, violated his USERRA rights by charging him military leave on nonwork days, forcing him to use his accrued annual and sick time and leave without pay for the required military duty.

Because Weiberg belonged to a collective bargaining unit, MSPB also ruled in late 2007 that it lacked jurisdiction in his case.

According to Greg T. Rinckey, the attorney representing Weiberg, MSPB's admission of error in Russell establishes that involvement in a collective bargaining unit should not remove its ability to hear Weiberg's case.

"Reservists are often met with resistance and red tape when attempting to resolve their claims administratively through their union," Rinckey said. "They need the option to pursue their claim in front of the board."

Weiberg's case is scheduled to be heard in front of the U.S. Court of Appeals for the Federal Circuit.

"A contract simply cannot supersede congressional mandate," Rinckey said. "The employment rights awarded to military personnel based on their dedicated service should not be waived because of union membership."