Undoubtedly today a significant number of adverse action appeals that would otherwise be heard by the Merit Systems Protection Board (MPSB) are instead being heard by arbitrators. This article is the first installment of a series which will examine the role of arbitrators in reviewing federal sector adverse action appeals.

It is elementary, yet important, to define the term “adverse action.” There are two categories of discipline, which have differing implications regarding how they are appealed. The more severe type of discipline is called an “adverse action” (i.e. removal, suspension of more than 14 days, reduction in grade or pay (not associated with a reclassification), furlough of 30 days or less). The less severe type of discipline is called a “disciplinary action” (i.e., suspension of 14 days or less, reprimand). Adverse actions are generally appealed to the MSPB, but, depending on the circumstances specific to an employee’s case, may be appealed to either the Equal Employment Opportunity Commission, the Office of Special Counsel, or through the negotiated grievance procedure of a collective bargaining agreement (CBA).

In order to properly proceed against an employee for an adverse action, an employee’s manager or supervisor must follow certain procedures and rules. Generally, the process for taking an adverse action goes as follows: (1) the agency issues a written notice of proposed action (“proposal”), (2) then the employee is entitled to an opportunity to respond to the charges in the proposal both orally and in writing, and (3) then the agency issues a decision on its proposal. Typically, a bargaining unit member will have a choice between pursuing an adverse action appeal through a negotiated grievance procedure or MSPB. Where a bargaining unit member elects to grieve an adverse action through the CBA and the adverse action is upheld, the employee may be able to appeal the adverse action to an arbitrator, who is an independent contractor chosen by the parties, with the consent of the union.

Although arbitration is a process independent of the MSPB, it is insightful to compare the two forums. In adverse action cases in which the bargaining unit member chooses to grieve through the CBA, the arbitrator must apply the same substantive legal standards as the Board in reviewing the adverse action. Also, like in an MSPB appeal, an agency has the burden of proving that its decision to take an adverse action promotes the “efficiency of the service” by showing that (1) the employee committed the conduct charged; (2) the penalty selected is not overly harsh given the factual circumstances; and (3) there is a connection between the alleged misconduct and the ability of the agency to carry out its mission. However, unlike the MSPB, an employee’s right to discovery is limited to only document requests (i.e., no interrogatories, no requests for admissions, and no depositions).

Just like the MSPB, the arbitrator must undertake a thorough review to determine whether any discipline was warranted, and if so, whether the penalty imposed was appropriate. The arbitrator is required to determine whether the agency properly considered the relevant factors in selecting a particular penalty. The agency’s decision as to what penalty to impose is entitled to deference, and the agency need not demonstrate that it considered all factors. Nonetheless, the arbitrator must independently assess whether the agency properly considered the relevant factors. If the arbitrator determines that the agency weighed the relevant factors and its judgment did not clearly exceed the limits of reasonableness, the penalty selected by the agency should be upheld. If the arbitrator determines that the agency failed to appropriately consider the relevant factors, then the arbitrator should mitigate the penalty to the appropriate level.

The next installment of this series which will analyze the arbitrator’s procedures and practices related to the mitigation of a penalty, in comparison to such a determination by the MSPB.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

 

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