Amicus Curiae Brief — Postal Service v. Gregory

Suprewe Coun, U.S

FIli.E D

JU 29 220/

No. 00-758 |

LC

IN THE

Supreme Court of the Anited States

UNITED STATES POSTAL SERVICE,

Petitioner,

Vv.

MARIA A. GREGORY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

BRIEF FOR AMICUS CURIAE

NATIONAL TREASURY EMPLOYEES UNION

IN SUPPORT OF RESPONDENT

GREGORY O’ DUDEN *

General Counsel

BARBARA A. ATKIN

Deputy General Counsel

KERRY L. ADAMS

Associate General Counsel

NATIONAL TREASURY

EMPLOYEES UNION

901 E. Street, N.W.

Washington, D.C. 20004

* Counsel of Record (202) 783-4444

_

WILSON-EPES PRINTING CO., INC. — (202) 789-0096. - WASHINGTON, D. C. 20001

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|BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the Merit Systems Protection Board, in reviewing

a federal agency’s disciplinary action against an employee,

may rely on prior disciplinary actions that are the subject of

pending grievance proceedings.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...........0cccccccrccssrecsessseesseesees i

TABLE OF AUTHIORITTES .....ccccccccsccccsscccscsssccscesseesses iv

INTEREST OF THE AMICUS .........ccssccssssessesesssserseeeees l

STATUTORY BACKGROUND. ..........ccccccccceseeeeeeeenees 2

SUMMARY OF ARGUMENT ............ccccccssssssssseseeeesees 5

ITT ceisiesnietntnnnneemnanesensesnussnusesceqneesestecveqceseossenncens 7

I THE RULING BELOW CORRECTLY

CONSTRUES THE SCOPE OF THE

MSPB’S AUTHORITY OVER ADVERSE

ACTION APPEALS WHOSE VALIDITY

DEPENDS ON THE OUTCOME OF

PENDING GRIEVANCE AND ARBITRA-

TION PROCEEDINGS ............ccccscseesseeeseeeeeeeeees 7

A. The Federal Circuit’s Decision Does

Not Affect Management's Ability to

Impose Adverse Action Based on Prior

BED cresnsssansssnnnssscenensnsssesessnceesenenseseees 7

B. The Ruling Below Properly Interprets the

MSPB’s Statutory Authority, As Balanced

Against the Complementary Jurisdiction

1 a cccncncssnensssssnncnnncemencesseccsserenense 8

C. The Ruling Below Promotes Efficiency...... 12

D. The Board’s Position Violates Its Own

Principle of Fundamental Fairness.............. 17

Sita cite cnerietenemenenneennqncconenseqneenceusuesensensnenzeansenee 20

iv

TABLE OF AUTHORITIES

CASES:

AFGE, Local 215 and Dep't of Health and

Human Servs., Social Security Admin., Office

of Hearings and Appeals, 93 FLRR 2-1373

AFGE, Local 2369, 23 FLRA 304 (1986) .............

Blank v. Dep't of the Army, 247 F.3d 1225

Cleveland Board of Education v. Loudermill, 470

CDS, SHS Ce cescsnsscesssnvsassveseamssssssssrsmssssnssnssses

Cornelius v. Nutt, 472 U.S. 653 (1985) ..........0008

Delgado v. Dep't of the Air Force, 36 M.S.P.R.

ee

Dep't of Defense, Air Force, Seymour Johnson

AFB and NAGE Local R5-188, 56 FLRA 249

Devine v. White, 697 F.2d 421 (D.C. Cir. 1983)....

Douglas v. Veterans Administration, 5 M.S.P.R.

ye

Eichner v. U.S. Postal Service, 83 M.S.P.R. 202

Fenwick v. Dep't of Veterans Affairs, 100

F.M.S.R. 84542 (2000) ............cccccssrccsssceccseeesees

Figueroa v. Dep't of Treasury, 98 F.M.S.R.

Page

\

TABLE OF AUTHORITIES—Continued

Page

Harris v. Dept. of Transp., 29 M.S.P.R. 430

CIEE ccncnsnimsentenssenentnnsnentemenmemiomeiensnenemenseis 13

Howard v. Dep't of the Army, 6 M.S.P.R. 205

ET 6, 8, 17

Hubbard v. U.S. Postal Service, 32 M.S.P.R. 505

SS 11

In re Arbitration between Island Creek Coal Co.

and UMW, 1996 WL 607192 (Case No. 93-23-

ee Cae Cee ansnensnnpensensasenmeennenremnen 12

Jones v. Dep't of the Air Force, 24 M.S.P.R. 429

Gee casnecsnssnssmeenmescammentenenemmmimnessmnammnmnemasicenes 8

Jones v. United States, 526 U.S. 227 (1999) ......... 17

Key v. U.S. Postal Service, 31 M.S.P.R. 197

Gil bnerrnntracansmustieinenimmennmmmemsenmanesetennennenesees 13

Lachance v. Devall, 178 F.3d 1246 (Fed.

sea wegneeenemsenssnnnipintepnesinnmnnammeneninssnmmenenens 4,9

Lachance v. Erickson, 522 U.S. 262 (1998) .......... 18

Metal Trades Council, 87 FLRR 2-1497, LAIRS

SEE GUT Densrereneeneranenmepeninesnstnmennmaenmmeennin 12

Milner v. Dep't of Justice, 87 MS.P.R 660

aE 13, 19

Morales v. Dep't of the Navy, 100 F.M.S.R.

oe eT cnnecnssecenmnsenmaretnpsennnnsinmannseenneeees 12

Morgan v. Dep't of Justice, 63 M.S.P.R. 58

TN 11

Overseas Federation of Teachers, AFT and DOD

Dependents School, 32 FLRA 410 (1988)......... 19

Powell v. Dep't of Defense, 2001 MSPB LEXIS

508 (MSPB Docket No. AT-0752-00-0746-

Oe, ee ernccneseesrensnmcemenmesnecnn 16

Pride v. U.S. Postal Service, 100 F.M.S.R. 84426

Ge ensesestessengnenmenanenremnsementnnenenesenngenee 12

Rewald v. U.S. Postal Service, 34 M.S.P.R. 13

Gee Pcccenensnemssassmaseemnmnnenemmnemenineemnenn 11

vi

TABLE OF AUTHORITIES—Continued

Rios v. Dep't of Veterans Affairs, \00 F.M.S.R.

Thomas v. U.S. Postal Service, 97 F.M.S.R.

ee 14

Thomas v. Dep't of Veterans Affairs, 51 M.S.P.R.

rT | 19

United States ex rel. Attorney General v.

Delaware & Hudson Co., 213 U.S. 366

U.S. Army Health Clinic, Fort Ritchie, MD, 9

OO Oe 9

Vaca v. Sipes, 386 U.S. 171 (1967) .........ccccceceeeeees 15

STATUTES AND REGULATIONS:

Civil Service Reform Act of 1978, Pub. L. No.

95-454, Tit. VII, 92 Stat. 111 ef seq..........ccccceee 2

tS en 4

gg) 8

DS en 8

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2), SS 3

9. See 3

3

5

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3

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Qo en 14, 16

§ 7121(b)(1 (C)(iii) «2.0.2... eeecceeeeeeeeeees 15

—

Vii

TABLE OF AUTHORITIES—Continued

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2. eee

I aati anette

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oy TTT cciceeiioniemescmaiiiatttasabaiatsieiiians

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} FOO ENGEED cxscnnssensscsscesmsssssnememmentes

PERIOD cossrensscersencsscssenscssesessssenntennnes

} FOCUS EE OEE cxssesnsssesscsseeesnsenstesnens

DF Pepe rccercssemsnumsnncenemensnesessenenss

DF RIGID cornesenssscnscsnmensscssncsnessscaneaneesn

MISCELLANEOUS:

Cindy Cole Ettingoff & Gregory Powell, Alter-

native Dispute Resolution Symposium: Use of

Alternative Dispute Resolution in Employ-

ment-Related Disputes, U. of Mem L. Rev.

BES GRD BD ccccccssesesccsscccsnsemeeneasensstenmnes

Elkouri and Elkouri, How Arbitration Works (Sth

4,19

Vili

TABLE OF AUTHORITIES—Continued

Page

National Agreement Between Internal Revenue

Service and NTEU, National Office Regional

and Districts (NORD) V available at www.

OUST ODE corccccccccrccocccccorccccoscccossosscoosscssossooeee sees 15

Paul Alan Levy, Deferral and the Dissident, U.

Mich. J.L. Ref. 479 (Spring and Summer

IN THE

Supreme Court of the Anited States

No. 00-758

UNITED STATES POSTAL SERVICE,

Petitioner,

Vv.

MARIA A. GREGORY,

Respondent. —

On Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

BRIEF FOR AMICUS CURIAE

NATIONAL TREASURY EMPLOYEES UNION

IN SUPPORT OF RESPONDENT |

INTEREST OF THE AMICUS '

Amicus Curiae, the National Treasury Employees Union

(NTEU), is a federal sector labor orzanization that is the

exclusive collective bargaining representative of approx-

imately 155,000 employees of the federal government

nationwide. NTEU and the employees it represents have a

vital interest in the resolution of the issue presented in this

case: whether the Merit Systems Protection Board (MSPB)

has authority to finalize an adverse action that the employing

agency has expressly based prior disciplinary actions either

overturned by an arbitrator, or subject to being overturned in

pending arbitration proceedings.

' The parties have consented to the filing of this brief, which was

authored in whole by NTEU counsel, and their letters of consent have

been lodged with the Clerk of this Court.

2

STATUTORY BACKGROUND

The issue here is one of statutory construction regarding

the complementary and sometimes overlapping roles that the

Merit Systems Protection Board (MSPB or Board) and

arbitrators play under the Civil Service Reform Act of 1978,

Pub. L. 95-454, 92 Stat. 111 et seg. (CSRA or Act). In

particular, resolution of this case depends on the proper

delineation of statutory authority between the MSPB and

arbitrators when reviewing penalties stemming from adverse

action taken against employees for the “efficiency of the

service,” under Chapter 75 of the Act (5 U.S.C. 7503(a),

7513(a)).

Chapter 75 of the Act includes action of the type taken

below by petitioner, United States Postal Service, against

respondent, Maria A. Gregory, based on alleged misconduct.

That statutory chapter covers federal employees with the

requisite tenure in the competitive service, as well as certain

individuals in the excepted service, including “preference

eligibles” like respondent. See 5 U.S.C. 7511(a)(1). Adverse

actions for misconduct often involve “progressive discipline”

such as that imposed by the Postal Service here, where

management expressly invokes prior discipline as

justification for imposing increasingly harsher penalties for

later incidents of alleged misconduct. In this case, the

Board’s statutory authority to review the validity of

respondent’s removal from federal service for the last

incident intersected with the statutorily sanctioned

jurisdiction of arbitrators under a collective bargaining

agreement to review charges of prior disciplinary action

leading up to that ultimate penalty.

Title VII of the Act, 5 U.S.C. 7701 et seq., requires federal

agencies and unions representing agency employees to

“negotiate over terms and conditions of employment, unless a

bargaining proposal is inconsistent with existing federal law,

rule or regulation. 5 U.S.C. 7103(a), 7116, 7117(a). Even

FEO, ORE Se 698 EES

3

matters specifically reserved to agency management dis-

cretion (e.g., the right to suspend or remove employees,

5 U.S.C. 7106(a)(2)(A)), are subject to negotiations concern-

ing procedures that management officials will observe in

exercising their authority. 5 U.S.C. 7106(b)(2). In the

provision applicable to employees in the competitive service,

the CSRA requires that all collective bargaining agreements

(CBAs) provide for a grievance procedure and binding

arbitration for the resolution of disputes arising under such

agreements. 5 U.S.C. 7121 (a) & (b). The union has a

statutory right to be present during all grievance proceedings

(5 U.S.C. 7121(b)(3)(B)); only the union or the agency may

invoke binding arbitration (5S U.S.C. 7121(b)(3)(C)).

The CSRA also contains a comprehensive scheme

governing agency personnel actions against competitive

service employees. Under that scheme, workers represented

by federal unions generally have only one avenue for

challenging a “minor adverse action,” which includes, for

example, a reprimand or suspension of two weeks or less:

they may file a grievance under the CBA procedures.

5 U.S.C. 7121(b) and (c).’ In the grievance process, a higher

level of agency management reviews the discipline proposed

by lower-level management. These CBA _ procedures

typically consist of two or three “steps,” during which the

employee challenges the proposed discipline before various

levels of management. When disputes remain unresolved at

the end of the steps, employees have no further recourse

absent consent of their union, which has the option of

invoking arbitration to obtain independent review of the

disciplinary action. In such proceedings, the arbitrator’s

award is final and binding on both parties, with only limited

? Two exceptions not applicable to this case permit appeal of a

disciplinary action to the MSPB: when the employee alleges protected

whistle-blowing or discrimination on the basis of military service.

5 U.S.C. 7121(c)(3).

4

review by the Federal Labor Relations Authority (FLRA).

5 U.S.C. 7122.

For major adverse actions (removals, suspensions for more

than 14 days, reductions in grade or pay, or furloughs for 30

days or less), the Act establishes procedural requirements and

gives the employee the option of seeking review-before the

MSPB. The Board has the duty to review compliance with

procedures and ensure that the agency-employer proves, by a

preponderance of the evidence, that the action “promotes the

efficiency of the service.” 5 U.S.C. 1205, 4303 (b)-(d),

7503(a), 7513(a), 7701(a) & (c)(1)(B) and (c)(2). If agency

management meets its burden of proving the underlying

charges, the Board reviews the agency’s choice of penalty for

abuse of discretion, with deference to the agency

management’s prerogative to choose the appropriate

discipline. 5 U.S.C. 7701(b)(3). See Lachance v. Devall, 178

F.3d 1246, 1255-1258 (Fed.Cir. 1999).

Competitive service employees covered by a collective

bargaining agreement have two options when challenging a

major adverse action: following the contract grievance

arbitration procedure or appealing to the MSPB. 5 U.S.C.

7121(e)(1), 7512, 7513(a). If the employee forgoes MSPB

review and the union invokes binding arbitration (5 U.S.C.

7121(b)(3)(C)), the arbitrator is bound to apply the same legal

standards as the Board would if the matter had been appealed

to it. 5 U.S.C. 7701(c), 7121(e)(2). Cornelius v. Nutt, 472

U.S. 653 (1985). The Act provides for judicial review of both

MSPB decisions and arbitration awards in adverse action

cases “in the same manner and under the same conditions.” 5

U.S.C. 7121(f), 7703. Such appeals lie exclusively in the

United States Court of Appeals for the Federal Circuit. 5

U.S.C. 7703(d).

In sum, the CSRA provides for collective bargaining

agreements with arbitration as the means of resolving

disputes under those agreements; entrusts arbitrators with

Se a aa

5

exclusive and final review authority over minor adverse

actions, subject to limited review by the FLRA, rather than

the MSPB; establishes standards and procedures governing

major adverse actions; provides for appeals to the MSPB

from such adverse actions; recognizes arbitration as an

equivalent alternative appeal route for challenging major

adverse actions when employees are covered by collective

bargaining agreements; and provides for judicial review of

both MSPB and arbitration decisions regarding major adverse

action awards in a single court of appeals under the same

conditions.

SUMMARY OF ARGUMENT

The Federal Circuit correctly interpreted the Act to prohibit

the MSPB from finalizing a major adverse action whose

legitimacy depends on the outcome of a pending arbitration

proceeding. The CSRA allows an employing agency to

impose progressive discipline leading to removal of an

employee from federal service based on prior disciplinary

actions challenged in arbitration, but the legality of such

removal is contingent on the arbitrator’s upholding the

validity of those previous agency actions. The statutory

scheme does not permit an agency to bypass the proceedings

to which the statute entrusts review of disciplinary action.

Moreover, the ruling below correctly harmonizes the

MSPB’s authority with that conferred by statute on federal

sector arbitrators. The Board may not vitiate the arbitrator’s

role by finalizing an employee’s removal that is expressly

based on prior disciplinary action pending in arbitration. The

Board has no statutory authority for the approach it took

below, lightening management’s burden of proof and

substituting its own cursory review of an incomplete

administrative record for determinations made by an

arbitrator on a full administrative record developed at an

evidentiary hearing.

6

Far from producing the adverse effects imagined by the

government, the ruling below best effectuates the overarching

statutory goal of promoting efficiency in the federal service.

The Federal Circuit’s ruling does not preclude management

from pursuing, consistent with the Act, appropriate adverse

action, while relevant grievance proceedings continue apace

in compliance with negotiated deadlines that unions and

employees have no incentive or opportunity to manipulate.

What the court of appeals’ decision does require is that the

Board defer ruling to avoid the risk of finalizing a removal

based on prior discipline that an arbitrator has declared, or

may yet declare, invalid.

To permit a removal to become final in_ these

circumstances is at odds with the statutory scheme, promotes

inefficiency, and also raises serious due process issues for an

improperly terminated employee. Accordingly, as in other

situations where the Board abstains from deciding an appeal

until another adjudicator rules on a related issue, the proper

path is to await the outcome of an arbitration award that will

have a direct impact on the MSPB proceeding. Indeed, under

the MSPB’s own precedent, principles of fundamental

fairness prohibit the Board from relying on charges that

“have never been proven.” Howard v. Dept. of the Army,

6 M.S.P.R.205, 206 (1981).

In addition, the government makes the unpersuasive

suggestion that due process concerns are insubstantial here

because the Board may consider reopening a concluded

removal proceeding. This possibility provides too little and

comes too late for employees officially removed from federal

service for reasons ultimately proven, in ongoing pending

proceedings, to be unlawful. Further, the government's

reliance on the Board’s discretion to reopen proceedings is

wholly irrelevant to employees whose adverse action appeals

are adjudicated by an arbitrator. Arbitrators have no authority

to unilaterally reopen proceedings once an arbitral decision

has become final.

7

ARGUMENT

I. THE RULING BELOW CORRECTLY CONS-

TRUES THE SCOPE OF THE MSPB’S AUTH-

ORITY OVER ADVERSE ACTION APPEALS

WHOSE VALIDITY DEPENDS ON THE OUT-

COME OF PENDING GRIEVANCE AND

ARBITRATION PROCEEDINGS

A. The Federal Circuit’s Decision Does Not Affect

Management’s Ability to Impose Adverse

Action Based on Prior Discipline

Contrary to the expansive interpretation upon which the

government bases its entire brief, the ruling below does not

rewrite the rules governing management’s ability to remove

an employee from the workplace promptly after an alleged

incident of misconduct. Rather, the decision simply interprets

the MSPB’s statutory authority to finalize such a removal

when its validity depends on the outcome of pending

arbitration proceedings.

‘Read properly, the Federal Circuit’s ruling does not

preclude management from taking action on the basis of prior

disciplinary actions, even when they are challenged in an

ongoing grievance proceeding. More specifically, nothing in

the ruling below restricts management’s statutory prerogative

to impose discipline without delay, once the employee is

afforded the procedural protections prescribed by the Act.

See 5 U.S.C. 7503, 7513(b), 7532. The court’s decision is

instead aimed at the propriety of the Board’s reliance on

challenged prior disciplinary history.’ That the agency is not

* That the court of appeals was focused on the Board’s, rather than

management's, reliance on prior discipline is made clear by the following

statement (Pet. App. 7a; emphasis supplied):

Here, as we noted above, the Board (and, it appears, the Postal

Service) used Mrs. Gregory’s prior disciplinary history as a primary

factor in determining the reasonableness of the penalty. Because

8

hand-cuffed as the government suggests (Pet. Br. 32-33; 40)

is further made clear by the fact that the statute does not give

employees a right to obtain a stay of the type of adverse

action at issue in this case.* Thus, under the statutory scheme

left undisturbed by the ruling below, an employee’s discipline

commences immediately upon completion of pre-discipline

hearing rights, which are not at issue in this case.

B. The Ruling Below Properly Interprets the

MSPB’s Statutory Authority, As Balanced

Against the Complementary Jurisdiction of

Arbitrators .

As the court of appeals noted, its treatment of disciplinary

actions under challenge in ongoing proceedings is rooted in

the Board’s own precedent regarding progressive discipline

based on prior penalties (Pet. App. 7a). In the MSPB’s own

words, “fundamental fairness requires that the Board not rely

on charges which have never been proven.” Howard v. Dept.

of the Army, 6 M.S.P.R. at 206. Similarly, the Board has

ruled that an agency may not justify a penalty determination

grounded on a prior discipline reversed in grievance

proceedings. Jones v. Dept of the Air Force, 24 M.S.P.R.

429, 431 (1984). Indeed, the MSPB must take this position to

avoid a direct conflict with the Federal Labor Relations

Authority, which has exclusive statutory authority to review

arbitration decisions addressing minor adverse action. The

FLRA has made it clear that an agency commits a statutory

those prior actions that were the subject of on-going grievance

proceedings could not be used, the Board abused its discretion in

relying upon them. Accordingly, the Board’s determination that the

penalty of removal was reasonable must be set aside.

* Although a union may negotiate stay provisions, the CSRA itself

provides for a stay only in limited circumstances, not pertinent here: on

request by an employee in whistleblower situations, and on request by the

Office of Special Counsel where there is an alleged prohibited personnel.

See 5 U.S.C. 1221(c)(1); 1214(b)(1 (A).

—_— re ee

9

unfair labor practice if it continues to rely on prior

disciplinary action reversed by an arbitrator, as justification

for progressive discipline in later cases. | American

Federation of Government Employees, Local 2369, 23

F.L.R.A. 304 (1986); U.S. Army Health Clinic, Fort Kitchie,

MD, 9 F.L.R.A. 935 (1982).

Notwithstanding this precedent, the Board’s approach

would finalize adverse actions based on charges that an

arbitrator could well invalidate after a hearing, just as

happened in respondent’s case. Such an approach conflicts

with an important role that Congress assigned the Board:

ensuring that an agency taking adverse action against

employees would provide “the specific reasons therefore.”

5 U.S.C. 7513(b)(4). Thus, the Act contemplates that the

Board ascertain, upon review, that there be a “precise

correspondence” between the discipline at issue and the

agency's specific justification for imposing it. Lachance v.

Devall, 178 F.3d 1246, 1258 (Fed. Cir. 1999). The Board has

no means of ensuring this requisite correspondence, however,

where an agency’s justification for a penalty is a prior

disciplinary record being challenged in other proceedings.

Only upon completion of grievance and arbitration challenges

to prior charges can the Board fulfill its statutory obligation to

scrutinize the agency’s “specific reasons” for imposing the

progressive discipline based on those earlier disciplines.”

The Federal Circuit’s ruling leaves undisturbed the Board's

seminal decision regarding the scope of its review of prior

disciplinary actions used by an agency to justify the penalty

* The decision leaves intact the Board’s list of factors that management

must balance in setting a penalty. Demonstrating how crucial it is for

prior discipline to be justified, three of the twelve Douglas factors relate

to priors: The first includes whether the current offense was “frequently

repeated”; the third is “the employee’s past disciplinary record”; and the

tenth is the “potential for the employee’s rehabilitation.” See Douglas v.

Veterans Administration, 5 M.S.P.R. 280 (1981).

10

of removal. See Bolling v. Dept. of Air Force, 8 M.S.P.R.

335 (1981). Under Bolling, where the Board reviewed a

removal decision based on prior discipline, the Board

determined that it would review “the documentary record of

the past action,” including “the record of any agency

administrative proceeding held in connection with the

action.” The Board did so as part of a process to “determine

the validity of that action as one of the reasons for the current

action.” Jd. at 338. The Board explained that management

could justify an adverse action based on prior discipline so

long as the earlier action is a “matter of record,” and the

Board can verify that the employee received the minimum

procedural protection of written notification of charges and

review before a different agency authority than the manager

who proposed them. If these basic criteria are met, the Board

upholds the prior discipline unless “clearly erroneous,”

leaving the Board with a “definite and firm conviction that a

mistake has been committed.” /d. at 339 (citations omitted).

The Bolling record comprised a complete administrative

record concerning the prior discipline, thus affording a

reasonable opportunity for the Board to determine the validity

of an earlier disciplinary action. The MSPB has, however,

expanded application of Bolling to cases, such as the instant

one, involving direct challenges to prior charges still being

scrutinized during grievance or arbitration. See, ¢.g.,

Freeman v. Dept. of Transp., 20 M.S.P.R. 290 (1984); Carr v.

Dept. of the Air Force, 9 M.S.P.R. 714 (1982). In these

cases, the Board extended, in conclusory fashion, the cursory

Bolling review to cases where the administrative record is

incomplete and lacks essential information about prior

disciplinary action. This the Board did without any attempt

to explain the inherent conflict with the Bolling framework,

which had assumed review of a complete administrative

record that allowed the accurate assessment of the “validity”

of prior discipline.

The Board had no legal justification for extending Bolling

standards—which were designed as minimum safeguards for

employees making collateral attacks on final discipline—to

undermine statutorily granted grievance and arbitration rights

of employees who are directly challenging prior discipline. It

was arguably appropriate to assume the validity of prior

discipline in the original Bolling context, where the employee

made a belated collateral attack and “did mot grieve or

otherwise contest any of the previous disciplinary actions.”

Bolling, 9 M.S.P.R. at 340. Where grievance and arbitration

rights provided by statute are invoked, however, the Act does

not allow the Board to substitute its own rubber-stamp review

of the same challenged adverse actions and bestow the

deferential “clearly erroneous” standard to management’s

finding of employee misconduct.°

On the contrary, where personnel actions are challenged

before an arbitrator or the MSPB, the Act requires

management to justify its decision by a “preponderance of the

evidence.” 5 U.S.C. 7701(c)(1)(B) and 7121(e)(2). Given

this burden of proof, it is particularly appropriate that federal

arbitrators, similar to their private sector counterparts, refuse

to consider prior discipline while it is under review in

pending grievance proceedings or before another arbitrator.

_* The Board routinely upholds the validity of management's prior

disciplinary actions as not “clearly erroneous.” See, e.g., Taylor v.

Department of Justice, 60 M.S.P.R. 686, 689-90 (1994); Delgado v. Dept.

of the Air Force, 36 M.S.P.R. 685, 689 (1988); Morgan v. Department of

Justice, 63 M.S.P.R. 58, 61 (1994); Rewald v. U.S. Postal Service, 34

M.S.P.R. 13, 16 (1987); Hubbard v. U.S. Postal Service, 32 MSPR 505,

508-09 (1987). We have located only one instance in which the Board has

overturned management's prior disciplinary action under this highly

deferential standard: in a unique case where the Board allowed the U.S.

Postal Service to rely on one prior discipline, and merely prevented its

reliance on a second penalty for the same incident of misconduct, which

would have been a clear violation of law. Eichner v. U.S. Postal Service,

83 M.S.P.R. 202, 210 (1999).

12

Compare Metal Trades Council, 87 FLRR 2-1497, LAIRS

18045 (1987) (earlier “suspension grievance having yet to be

finalized leaves this arbitrator no alternative but to disregard

its effect and impact on rendering a decision” regarding

validity of the federal employee’s ultimate removal) with /n

re Arbitration between Island Creek Coal Co. and UMW,

1996 WL 607192 (Case No. 93-23-96-06) (March 15, 1996)

(earlier suspension of private-sector employee that was

pending before another arbitrator “cannot be held against the

Grievant” because “there is no way of determining at this

point whether or not those charges against the Grievant are

valid”).

Where the agency-employer chooses to base a major

adverse action on prior discipline, the Board’s review, to be

consistent with the statutory scheme, must necessarily await

resolution of any pending statutorily sanctioned challenges to

those priors. As discussed, the CSRA gives arbitrators and

the FLRA, not the Board, statutory authority to determine the

validity of minor adverse actions like respondent's three prior

disciplines. Until arbitrators resolve pending challenges to

such earlier discipline, by deciding whether the agency

justified its action by a preponderance of the evidence, the

Board simply cannot fulfill its statutory duty of ensuring the

validity of resulting major adverse action.

C. The Ruling Below Promotes Efficiency.

The Federal Circuit’s opinion has limited impact on the

Board’s processes and merely ensures that it handle

progressive discipline in the most efficient matter. As

evidenced by initial decisions issued in the wake of the

appellate court’s opinion, the MSPB can proceed to finalize

progressive discipline without delay where management has

provided adequate justification that does not rely on prior

discipline still being challenged elsewhere. See, e.g., Morales

v. Dept. of the Navy, 100 F.M.S.R. 84248 (2000); Pride v.

U.S. Postal Service, 100 F.M.S.R. 84436 (2000); Rios v.

13

Dept. of Veterans Affairs, 100 F.M.S.R. 84209 (2000); and

Fenwick v. Dept. of Veterans Affairs, 100 F.M.S.R. 84542

(2000). The Federal Circuit's decision only affects the MSPB

in those relatively few cases involving adverse action based

Squarely on prior discipline that is still pending at the

grievance or arbitration stage when the Board is ready to

exercise its review. Such cases arise only when management

has expressly invoked a specific prior discipline in the notice

of proposed action regarding a later incident of alleged

misconduct. See Harris v. Dept. of Transp., 29 M.S.P.R. 430

(1985) (agency could not rely on a prior discipline that it

failed to reference in the proposal notice for the action under

review). In those instances, the statutory scheme simply

requires the MSPB to defer finalizing the dependant adverse

action until completion of the grievance and arbitration

challenges. This interpretation not only harmonizes the

Board’s role with that of arbitrators, but it is the most

efficient and fair way for the Board to proceed.

Given the posture of the progressive discipline chosen by

the agency-employer, the only reasonable approach—and the

only one consistent with the statutory scheme—is for the

Board to defer review of an employee’s removal pending the

outcome of arbitration proceedings that will necessarily affect

the validity of its own ruling. The Board has long recognized

its statutory authority to abstain from deciding an appeal and

defer to another adjudicator reviewing an identical issue. See,

e.g., Key v. U.S. Postal Service, 31 M.S.P.R. 197, 200 (1986)

(Board abstained and deferred to a district court’s ruling on

an EEO issue and ultimately dismissed a petition for

enforcement in light of a settlement in the court proceeding).

As the MSPB has recently explained, its administrative

judges have broad discretion to grant continuances or even

dismiss appeals without prejudice to refiling when a

continuance threatens to be too lengthy or indefinite. Milner

v. Dept. of Justice, 87 M.S.P.R. 660, 666 (2001). Administra-

tive judges, in fact, have often found good cause to defer to

14

pending arbitration proceedings. See Figueroa v. Dept. of

Treasury, 98 F.M.S.R. 84655 (1998); Hall v. Tennessee

Valley Authority, 96 F.M.S.R. 80050 (1997) (dismissals

without prejudice to refiling after resolution of arbitration),

Thomas v. U.S. Postal Service, 97 F.M.S.R. 82584 (1997)

(even if Board had jurisdiction, it would abstain and defer in

light of pending arbitration on same issue). Particularly given

this precedent, there is no justification for the Board forging

ahead to finalize an employee’s adverse action based on prior

discipline being reviewed in ongoing grievance proceedings,

rather than awaiting a ruling by the arbitrator entrusted with

exclusive statutory jurisdiction over such matters.

Contrary to the government’s contention (Pet. Br. 34-36),

the lower court’s ruling does not encourage employees to

prolong grievance proceedings to protect themselves against

possible discipline in the future. Because disciplined

employees have no means of obtaining a stay of suspensions

or removals, they have every incentive to pursue grievance

and arbitration as expeditiously as possible, in the hope of

being put back on the job and recovering back pay. The

government wrongly suggests that grievance proceedings are

open-ended and subject to mischievous manipulation by

employees. By statutory mandate, any negotiated grievance

procedure must “provide for expeditious processing.”

5 U.S.C. 7121(b)(1)(B). Management and unions thus nego-

tiate specific deadlines, which can be extended only by

agreement of the parties, placing outer limits on the

completion of the employee’s role.

As delineated in NTEU’s own collective bargaining

agreements, grievance procedures are designed to be

expeditious, starting with two or three “steps” involving

meetings or exchanges of written communications designed

to resolve disputes without resort to arbitration. Typical time

frames for accomplishment of all pre-arbitration grievance

steps range from 60 to 85 days, half of which are allotted to

15

the agency. See, e.g., National Agreement Between Internal

Revenue Service and NTEU, National Office Regional and

Districts (NORD) V Art. 38 (Disciplinary Actions), Art. 39

(Adverse Actions) and Art. 41- (Employee Grievance

Procedure), available at http://www.nteu47.org. Manage-

ment thus retains substantial control over the length of any

given grievance and arbitration proceeding. Not only can it

refuse to grant extensions of time to the union, but

management can also substantially reduce the time necessary

to finish the grievance steps, merely by taking less than the

full time available for meeting its own deadlines.

Nor would the ruling below increase the number or length

of arbitrations. Employees themselves have no statutory right

either to invoke arbitration on their own, or to insist that a

union invoke arbitration on their behalf. See 5 U.S.C.

7121(b)(1)(C\iii) (authorizing employees’ exclusive

representative to invoke arbitration). Unions lack the

motivation and means to exercise their statutory invocation

rights frivolously. Invoking meritless arbitrations for the

purpose of protracting grievance proceedings would likely

demonstrate bad faith and might constitute a statutory unfair

labor practice. See 5 U.S.C. 7116 (b) (5). Finally,

meretricious arbitration is something that unions can ill afford

to do. Compensation to arbitrators and investment of

considerable staff time create a serious drain on limited union

funds and erect a realistic barrier to unwarranted invocations.

See Schneider Moving & Storage Co., v. Robbins, 466 U.S.

364, 376 (1984); Vaca v. Sipes, 386 U.S. 171, 191 (1967)

(employees cannot force their unions to invoke arbitration,

which is the “most costly and time-consuming step in the

grievance procedures.”’)

The Federal Circuit has recently clarified that the ruling in

this case did not require the Board to stay its hand for

resolution of disciplinary actions being reviewed by the

EEOC for complaints of discrimination. Blank v. Dept. of the

16

Army, 247 F.3d 1225 (2001).’ The ruling below therefore

requires that the Board defer only to the “expeditious

processing” of grievance and arbitration decisions. See 5

U.S.C. 7121(b)(1)(B). Under NTEU’s collective bargaining

agreements, for example, the union has no more than 20 or 30

days to invoke arbitration after conclusion of the grievance

steps. Once the parties choose an arbitrator under the

contract’s pre-arranged procedures, a hearing usually takes

only a day. See Cindy Cole Ettingoff & Gregory Powell,

Alternative Dispute Resolution Symposium: Use of Alter-

native Dispute Resolution in Employment-Related Disputes,

U. of Mem. L. Rev. 1131, 1136 (Spring 1996) (“arbitration

hearings typically last one day”); Paul Alan Levy, Deferral

and the Dissident, U. Mich. J.L.Ref. 479, 557 (Spring and

Summer 1991) (“the average labor arbitration hearing lasts

one day”). In addition, the agency and union may impose

deadlines on the arbitrator, requiring decisions within a

limited amount of time after conclusion of the hearing. See

generally, Elkouri & Elkouri, How Arbitration Works at

379-381 (Sth Ed.). See also AFGE, Local 2029, 48 FLRA 95

(1993) (tardy arbitration award stands where complaining

party failed to object before the ruling).

Contrary to the government's suggestion (Pet. Br. 33-36),

the unsynchronized review of progressive discipline present-

ed in this case will remain a rare occurrence, particularly

given the prevalent practice of “bundling” minor adverse

actions. When management takes a series of disciplinary

actions against an individual employee within a short time-

frame, the parties typically agree to consolidate grievances

’ The MSPB recently read the Federal Circuit’s Blank v. Dept. of the

Army ruling broadly, allowing management to rely on disciplinary action

being challenged on discrimination grounds in a grievance proceeding

pending at the employing-agency level. Powell v. Dept. of Defense, 2001

MSPB LEXIS 508 (MSPB Docket No. AT-0752-00-0746-I-1) (June 7,

2001).

17

into a single proceeding. See, e.g., AFGE, Local 215 and

Dept. of Health and Human Svcs., Social Security Admin,

Office of Hearings and Appeals, 93 FLRR 2-1373 (1993).

This efficient practice avoids the need for multiple

proceedings and allows the arbitrator to hear all relevant

evidence regarding the full range of disciplinary actions,

permitting him to rule on the validity of all challenged

adverse actions.

The instant case is.extremely atypical in terms of the long

period of time in which two of the minor adverse actions

against grievant have remained unresolved by an arbitrator.

The only explanation in the record is respondent’s assertion

that the lack of arbitral resolution stems from management’s

Own tactics: securing dismissals of scheduled arbitrations on

the grounds that the Board had already finalized respondent’s

removal from service. See Resp. Br. 9-11. If so, of course,

the government must not be heard to complain about the lack

of resolution of the merits of the underlying adverse actions

(Pet. Br. 34). In any event, the delays here are extraordinary

and in no way indicative of the normal speed of grievance

and arbitration proceedings.

D. The Board’s Position Violates Its Own

Principle of Fundamental Fairness.

The Board’s practice of finalizing employee removals,

notwithstanding the pendency of highly relevant pending

adverse action proceedings, directly conflicts with its own

stated rule against reliance on unproven charges out of

concern for “fundamental fairness.” Howard v. Dept. of the

Army, 6 M.S.B.R. at 206. As in other cases where a party’s

Statutory interpretation raises constitutional concerns, the

Court should reject the Board’s construction to avoid serious

due process issues. See Jones v. United States, 526 U.S. 227,

239 (1999); United States ex rel. Attorney General vy.

Delaware & Hudson Co., 213 U.S. 366, 408 (1909) (“where a

Statute is susceptible of two constructions, by one of which

18

grave and doubtful constitutional questions arise and by the

other of which such questions are avoided, our duty is to

adopt the latter.”’)

Final termination of a government employee is a serious

deprivation of property.” This Court has “frequently

recognized the severity of depriving a person of the means of

livelihood.” Cleveland Board of Education v. Loudermill,

470 U.S. 532, 543 (1985) (citations omitted). The removed

employee may be without a paycheck indefinitely, without a

source of income or means of making financial plans. Being

removed for cause may make it difficult, if not impossible, to

find- other employment, in addition to creating intangible

harms, including loss of self-esteem. The Board should not

be allowed to forge ahead to finalize a termination based on

prior discipline that may prove invalid.

Tacitly acknowledging that the Board’s position can lead to

the wrongful removal of employees, the government

maintains that this unfairness is alleviated because employees

can file a motion requesting the Board to reopen proceedings,

should subsequent arbitrations undermine the justification for

their removal from service. Pet. Br. 33. This approach

obviously provides the employee with no protection at all if,

as apparently happened here, the agency-employer cuts off

ongoing arbitrations on the basis of the Board’s decision to

finalize the employee’s removal from federal service. See

supra at 17. Even where management does not interrupt the

grievance and arbitration process, reliance on the Board’s

willingness to exercise its discretion provides insufficient

protection to the unlawfully discharged employee, who

should not bear the burden of trying to reopen proceedings.

* Public employees such as respondent, “who can be discharged only

for cause have a constitutionally protected property interest” in their jobs

_ and cannot be fired without due process. Gilbert v. Homar, 520 U.S. 924,

930 (1997) (citations omitted). See also Lachance v. Erickson, 522 U.S.

262, 266 (1998).

19

See Milner v. Dept. of Justice, 87 M.S.P.R. at 666; Thomas v.

Dept. of Veterans Affairs, 51 M.S.P.R. 218, 221 (1991)

(continuance is preferred option, where employee objects to

dismissal of an appeal without prejudice to refiling, in part

because employee “should not face the additional burden of

refiling or otherwise reinstating his appeal.”). Instead,

management must bear the affirmative burden of bringing

progressive discipline into compliance with an arbitration

ruling overturning prior discipline, as it must do to avoid

committing an unfair labor practice under FLRA precedent.

See supra at 8-9.

Moreover, the government’s effort to avoid due process

concerns by relying on the Board’s authority to reopen a

concluded removal proceeding is inapposite for those many

employees who are covered by a CBA and have chosen the

statutorily sanctioned grievance-arbitration procedure to

appeal an adverse action. Reopening proceedings regarding

minor or major adverse actions is not an option for federal

sector arbitrators.’ Unlike the Board, arbitrators have no

authority to reconsider their rulings upon the request of a

single party. Dept. of Defense, Air Force, Seymour Johnson

AFB and NAGE Local RS5-188, 56 FLRA 249 (2000);

Oversees Federation of Teachers, AFT and DOD Dependents

School, 32 FLRA 410 (1988). After issuing a final award, all

power of the arbitrator has been exhausted, unless the parties

jointly confer new authority; a request for reconsideration by

only one party has no effect. See Devine v. White, 697 F.2d

421, 433 (D.C. Cir. 1983). In other words, management

could effectively block any attempt by an employee to reopen

arbitration proceedings whose validity is called into question

by another arbitral ruling.

| ” As noted supra at 4, the Court’s resolution of the question presented

in the instant case would bind arbitrators, as well as the MSPB. See 5

U.S.C. 7701(c), 7121(e)(2).

20

Thus, the government’s reliance on the Board’s authority

to reopen concluded proceedings only compounds—and

certainly does not cure—the fundamental unfairness of

allowing employees to be terminated by relying on charges

ultimately proven in pending ongoing proceedings to have

been unfounded. Employees, particularly those covered by a

CBA, could well prevail in proceedings challenging earlier

discipline only to be left without any recourse as to resulting

terminations. Such a result is untenable and cannot be

squared with the due process concerns the Board purportedly

wishes to safeguard.

CONCLUSION

For these reasons, the judgment of the court of appeals

should be affirmed.

Respectfully submitted,

GREGORY O’ DUDEN *

General Counsel

BARBARA A. ATKIN

Deputy General Counsel

KERRY L. ADAMS

Associate Generat Counsel

NATIONAL TREASURY

EMPLOYEES UNION

901 E. Street, N.W.

Washington, D.C. 20004

* Counsel of Record (202) 783-4444

June 2001