By John V. Berry, Esq., www.berrylegal.com
When facing a serious disciplinary action as a federal employee, there remain a few choices as to the forum in which to appeal. This post addresses the issue of how to approach a disciplinary appeal involving federal agency removals and significant suspensions (over 15 days) in the forums available to federal employees. These 2 forums have different procedures, so it is important to know the differences when an employee is faced with evaluating which type of forum to choose
Two Principal Options for Federal Employee Removal/Suspension Appeals: Arbitration or MSPB
When a federal employee receives a copy of a final federal agency decision sustaining a removal or significant suspension (15 days and above) they generally have 2 options if they want to appeal the decision that has been made. The first potential option for the federal employee is to file an appeal of the removal/suspension with the Merit Systems Protection Board (MSPB). The second option is to appeal the removal/suspension decision through the federal employee’s federal sector union through the applicable grievance/arbitration procedure.
There are other potential legal options out there for federal employees outside of the MSPB and arbitration process, when applicable, such as the filing of a whistleblower complaint with the Office of Special Counsel (OSC) or perhaps a complaint alleging discrimination, retaliation or harassment through the federal agency’s Equal Employment Opportunity (EEO) office, but the focus of this article are the main 2 options for a federal employee in appealing the substance of the misconduct allegations which have been sustained by the federal agency involved. The federal employee will usually only be able to appeal the removal or suspension to only one forum. Therefore, usually the first one selected will be the forum that the federal employee must usually stay with. As a result, it is important to evaluate each potential option before filing a grievance / arbitration request or an appeal with the MSPB.
While many federal employees have a choice between forums, some do not. While most career (non-probationary) federal employees have the right to appeal a removal or significant suspension to the MSPB, not everyone has the right to take their case to arbitration. In order for a federal employee to have the right to take their case to arbitration, the federal employee must be represented by a federal sector union that agrees to take the case to arbitration. If there is no union, then there is generally no right to file for arbitration review of serious discipline. If this is the case, then the choice between filing with the MSPB and filing for arbitration can be fairly easy to make.
If a federal employee has the right to file for arbitration through an existing union, then before exercising their options they should confirm whether or not their union will agree to permit arbitration. Federal sector unions generally control the ability to go to arbitration, not the federal employee, so whether a case can go forward to arbitration is usually up to them. If a union agrees to take the federal employee’s case to arbitration, then all of the other considerations come into play in order for the federal employee to make a well-informed decision about which forum to choose.
Seeking Information from the Agency in Arbitration and MPSB Appeals
Both arbitration and the MSPB have specific procedures to assist federal employees in attempting to obtain information for use in their appeals. At the MSPB, more typical discovery procedures (similar to those available in court) govern. A federal employee (generally through counsel) can take depositions, serve production of documents requests, and serve interrogatories on the federal agency involved. In general, the MSPB tends to have better discovery procedures (especially the use of depositions) than those available in arbitration.
In arbitration, a federal employee is represented by the union either through a union or private attorney (with the approval of their union). The union has the ability to request documents relevant to a disciplinary case on behalf of the affected federal employee. This ability comes through the submission of what is known as a "union information request" pursuant to 5 U.S.C. § 7114(b). The one key difference between the 2 forums (MSPB and arbitration) is that there generally is no right to take depositions in arbitration proceedings, to request responses to interrogatories or to ask for requests for admission.
MSPB Hearings vs. Arbitration Hearings
There are also differences between MSPB hearings and arbitration hearings. For the most part both the MSPB and arbitration hearings tend to be less formal than regular court proceedings. In our experience, arbitration is the less formal of these two types of hearings.
In an arbitration, the Arbitrator acts as the judge who will issue the ruling on the federal employee's appeal in the case. Typically, arbitrators tend to be very experienced attorneys in labor and employment law issues and will be mutually selected by the parties or sit on a regular panel of arbitrators that hear cases between the individual federal agency and the union. In MSPB cases, the proceedings are run by an appointed Administrative Judge that is assigned to a federal employee's case by the appropriate local or regional office of the MSPB.
Generally, it takes about 120 - 150 days (this can run longer) from the filing of an MSPB appeal to the time in which a federal employee reaches an MSPB hearing. It will take between a few weeks to a few months after that hearing, usually, for an federal employee to obtain a ruling by the administrative judge. In arbitration, the timeline can be shorter or longer (depending on what procedures the parties have in their collective bargaining agreement and the dates that the arbitrator may have available for the hearing). Sometimes, depending on the collective bargaining agreement, the arbitration process must first start in the grievance process and will ultimately move to arbitration, causing the process to run longer. On average, we find that it takes longer to reach a final decision in the arbitration process than in the MSPB.
The MSPB hearing is generally held at the MSPB's local regional office, whereas an arbitration hearing can be scheduled any place that the parties agree upon or which is specified in their collective bargaining agreement (they usually take place at the agency). Both proceedings allow for the use of witnesses and examination and cross-examination by counsel. While the MSPB tends to have better discovery procedures, arbitrators tend to be more open to reversing disciplinary cases in general.
Closing Thoughts
We advise potential federal employees to seek counsel to help them evaluate their individual cases to determine the best type of proceeding, either arbitration or MSPB, that is right for their case. Both types of proceedings can be valuable for a federal employee facing a choice as to an appeal of serious discipline. We can beached by telephone at (703) 668-0070 or www.berrylegal.com for addition information or to set up a consultation.