By William Wiley

So you think you know how to discipline an employee, do you? You’ve read the law, the regulations, and your agency’s policies regarding misconduct. You’re familiar with the requirements of the Merit Systems Protection Board. If you work for an agency and you’ve been to our FELTG seminars, you know you need to prove by a preponderance of the evidence the Five Elements of Discipline to defend an adverse action based on misconduct (and if you work for the union, you know to make sure these are present):

  1. There has to be a rule (we define “misconduct” as violation of a rule).
  2. The employee knows the rule (you can’t enforce secret rules).
  3. The employee broke the rule.
  4. The penalty is reasonable (Douglas Factor analysis).
  5. The agency provided due process (the Deciding Official considered only the proposal & response).

If these concepts are unfamiliar to you, without untoward delay, PLEASE get yourself to some training. Because if you don’t grasp this fundamental concept of the Five Elements, you cannot do you job. Seriously. The next opportunity you have for open-enrollment training with FELTG on this topic is March 7 through 11 in Washington, DC. Do it now: https://feltg.com/event/mspb-law-week/?instance_id=107 .

These elements are fundamental to every disciplinary adverse action in government. However, if the employee is in a collective bargaining unit, the agency has other requirements that have to be met.

First, the experienced practitioner will look to the collective bargaining agreement (CBA) to see if there are any procedural requirements to implementing discipline within the bargaining unit (BU). For example, the CBA may require notice to the union of any proposed discipline. Or, there may be a provision of the CBA that extends the notice period beyond the regulatory minimums. When working with BU employees, practitioners on both sides need to be intimately familiar with the CBA and any sidebar agreements relative to it (New to labor relations? Come learn this stuff in our next labor law seminar, FLRA Law Week, May 2-6, Dupont Circle, DC, https://feltg.com/event/flra-law-week/?instance_id=103 ).

Next, both agencies and unions need to be prepared for a case of discipline to be grieved and thereby taken to arbitration. Arbitrators are hired judges who will apply the law and the CBA to the facts of an adverse action case and decide whether the discipline was administered for “just cause,” a concept similar to MSPB’s review, but significantly different.

For example, there is no principle in MSPB law that requires an agency to investigate prior to discipline. The only requirement is that the agency has evidence to support the discipline. Arbitrators, on the other hand, look to principles of “industrial due process”. In doing so, they look to sources of arbitration authority other than the CBA. “Just cause” and industrial due process include the requirement that management conduct a fair investigation prior to assessing discipline, Elkouri & Elkouri. One common element of this requirement is that the employee and witnesses are interviewed prior to making the decision to take the disciplinary action. Brand & Biren, Discipline and Discharge in Arbitration, AFGE v. USDA, Fed. Arbn. 0-AR-5160 (2015), CBP & Nat. Border Pat. Council, Fed. Arb. 0-AR-5109 (2105).

So you fire a BU employee without interviewing the miscreant. You concluded you didn’t need to because you had him clearly on video loading the stolen computers into the trunk of his car, then blasting through the gate with guns drawn and singing “God Bless America” while simultaneously asserting his Constitutional rights to seize federal property.

Appeal to MSPB:  Removal sustained.

Grieve to an Arbitrator:  What? No interview with the employee? A violation of industrial due process! Removal set aside (at least possibly, with some arbitrators).

Finally, you owe it to your client to explain how arbitration works. MSPB judges can stay employed for years without ever reversing or mitigation an agency’s adverse action. Their performance standards do not require any particular distribution of outcomes in their decisions. They are hired by the Board, a neutral agency intent on applying the law, however the law turns out.

On the other hand, arbitrators are hired by the parties: the union and the agency. If an arbitrator always holds for the agency and never mitigates or reverses an adverse action, do you think the union is going to agree to employee that arbitrator in the future? [Insert your own answer in this space.] So expect to see some highly attenuated, questionable legal rationales when it comes to the assessment of an agency’s burden and the elements of proof in an arbitration award. The arbitrator’s role is different from that of an MSPB judge. Not necessarily bad; just different. Wiley@FELTG.com

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