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Relationship Between Arbitration and Administration Procedures in the Discipline and Discharge of Federal Employees

NCJ Number
Labor Law Journal Volume: 34 Dated: (September 1983) Pages: 586-598
C Feigenbaum
Date Published
This article explores the relationship between arbitration and the administrative appeal procedures available to Federal employees for issues of discipline and discharge, and points out that Federal-sector arbitration operates in a unique context that must be respected by the arbitrator.
The discussion of the 1978 Civil Service Reform Act (CSRA) notes the two steps it took to increase the scope of grievance arbitration. First, it broadly defined 'grievance' to include complaints on any matter relating to an employee's job. Second, the law mandated that all collective bargaining agreements contain a grievance procedure which culminates in binding arbitration. The two general reasons for which employees can be dismissed -- misconduct and unacceptable work performance -are addressed, and CSRA's handling of these termination grounds is considered. The availability of appeals to the Merit Systems Protection Board (MSPB) is discussed, and the relationship of various aspects of MSPB procedures and court review to the arbitration of similar issues is analyzed. The standards of proof for discipline (substantial evidence for performance cases, preponderance of the evidence for misconduct cases) and the concept of 'harmful error' are considered, as are judicial review and arbitral reconsideration. The impact of CSRA on grievance arbitration in the Federal sector is concluded to be a mixed blessing; while the scope of the arbitration has been widely enlarged, arbitration is now less private than before. Twenty-three footnotes are provided.