FAQ: MSPB or Arbitration?

Question

“The agency has proposed to remove me [terminate employment] after four years of working.  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”

Answer

We do not know the facts of your case.  Therefore, we cannot answer with specificity.  However, we will address the general concepts of MSPB versus arbitration concerning 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 or 2) the arbitrator (at arbitration) or judge (at MSPB) mitigates the penalty of removal.  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). 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.

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1 comment for “FAQ: MSPB or Arbitration?

  1. Dale L. Ingram
    February 16, 2014 at 1:21 am

    While I would not state I categorically disagree, I think there are assumptions that skew the answer. First, the answer presumes that an informal process is beneficial to the appealing party. This may make union people conducting the hearing feel they aren’t be overwhelmed by process and have the chance to “just tell the story”. There usually isn’t much “objecting” and objections that are made are usually responded to by the arbitrator as allowed, but will just go to the weight of the evidence. Also, once the arbitration decision is rendered, the ability to appeal is practically nil for the employee, but the agency can appeal, or the OPM can appeal if there is the possibility that it may effect personnel issues within its auspices.

    I think MPSB should be given greater consideration these days based on the following:
    1) New members of the MSPB. Some of the precedent that has been so hard on employes is being slowly changed.
    2) You get a lot more discovery. You can take depositions, and otherwise put peoples feet to the fire that you don’t have in arbitrations. At arbitration hearing, agency witnesses can talk and talk and never answer the question. The arbitrator rarely forcefully takes control of hearings when the agency is playing hide the ball. You may think that the arbitrator is “getting it”, but you don’t know till you get the decision.
    3) The statistics favoring arbitration are skewed because cases that the employee is likely to win are settled. The AJ’s DO NOT want the work of conducting a hearing and writing a decision. They require settlement discussions occur and usually oversee the discussions during prehearing conference, or try to get the parties to mediation. An arbitrator is unlikely to try to settle the case because s/he would be talking himself out of work. On cases that have very good fact patterns for the employee, I’ve had AJ say, “Well, I’m not saying how i’m going to rule, but I do not see how the agency is going to be able to overcome….”. The agency usually gets it and proceeds to settle.
    4) I have been practicing MSPB for over 25 years and I can count on one hand the number of cases when I have not been able to put the employee in a better position than when the came to me.
    5) Even in cases with pretty brutal facts for the employee, if the employee’s settlement demands are reasonable (clean record, neutral reference, something toward fees) the AJ will really lean on the agency to settle because, again, they are over worked and they do not want to hold a hearing on a loser case.
    and, finally,
    6) You get more bites of the apple. If you lose to the AJ, you can appeal to the Board, and after that, the the court of appeals for the federal circuit. Granted, the appeals are progressively more difficult, but there is an awful lot of favorable decisions by the Board and the Court that can’t be ignored.

    I guess my main point is, don’t just pass on MSPB because it seem complicated and technical. Some cases have facts which are better held in one forum over the other. Also, a terminated employee who has some annual leave or other money available, along with some help from the union, can get some pretty big bang for the buck. An arbitration decision doesn’t make a very big impact outside the local agency. But, an MSPB decision which is published is know not only throughout the local agency, but throughout the gov’t. Most of the local honchos don’t want to suffer the embarassment of being the subject of a training exercise at some point in the future

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