MSPB or Arbitration in Federal Sector?

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Background Question

“The agency has proposed to remove me [terminate employment] after four years of employment.  My union steward said I should go to arbitration instead of the MSPB [Merit Systems Protection Board]. Are my chances better at MSPB or arbitration”

MSPB or Arbitration Addressed

MSPB or arbitration has often been the key question faced by federal employees. However, we do not know the specific facts or circumstances of your case.  Therefore, we cannot answer with specificity.  However, we will address the general concepts of MSPB or (versus) versus arbitration in connection with, for example, a removal.

The first and perhaps most important point to remember regardless of the venue of appeal is that lacking merit, you are unlikely to prevail on appeal unless 1) the agency committed a harmful procedural error (and even this is limited) or 2) the arbitrator (at arbitration) or judge (at MSPB) mitigates the penalty of removal based on the factual basis of your challenge.  It is actually more complicated than that, especially at MSPB, but we will spare you the technical details.

Many practitioners, both union and agency, will cite MSPB management (agency) favorability statistics indicating MSPB favors the agency in outcomes.  This is true, but somewhat skewed because most labor organizations will 1) send “bad cases” (those lacking merit) to the MSPB because there are no associated costs unlike arbitration and/or 2) send cases to MSPB because they lack funds to pay for arbitration.

The MSPB has jurisdiction only over federal employees who are affected by an adverse action such as removal, demotion, pay reduction, furlough, or suspension greater than 14 days (not all inclusive) and certain other limited and unusual circumstances such as retirement issues and challenges. Contract employees, probationary employees, fee basis, term and temp employees rarely have standing at MSPB.  MSPB is a quasi-judicial forum, which most agency practitioners prefer.  As such, it is more formal, complicated, and structured compared to arbitration.  Most judges strictly focus on the charge and specification contained in the proposed action and sustained in the decision letter. Most pro se appellants, and even union representatives on occasion, make the mistake of not focusing on the charge and specification and the appropriateness of the penalty (particularly with very senior and discipline free employees).  This is often a fatal error contributing to the skewed outcome statistics.

Arbitration is an informal process (which most union representatives prefer) in which the arbitrator is not bound by case precedent, unlike the MSPB.  However, an arbitrator must draw his authority for overturning an agency decision, or issuing any other award, from the Master Agreement (Contract) or law.  In other words, an arbitrators award cannot be in violation of law, though not bound by precedent.  Arbitrators are always more relaxed and do not adhere to Civil Rules of Procedure.  It is generally a very relaxed atmosphere and witness examination is not bound by MSPB rules, though not entirely without rules as they are set by the arbitrator and generally adhere to industry guidelines. Often, the arbitrator will ask the appellant or witnesses questions directly.

Unlike MSPB, arbitration allows a “wide variance” in the appellants defense efforts and “theory of the case.”  Often, if the arbitrator sees the union or appellant struggling, they will act as a process guide.  At arbitration, you are much better able to explain your position and contributing or mitigating factors that are outside the charges and specifications of the adverse action. At the least, you stand a much better chance of having the adverse action mitigated or overturned at arbitration than you would at MSPB because the arbitrator is 1) not bound by precedent and 2) can consider a wider range of information and 3), does render a ruling based on law alone.

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