IS IT “SHIRKING” OR JUST OLD FASHION LYING?
The political extremists who see unions as their enemies (and most are) and who would give managers unreviewable dictatorial power to fire whomever they wish for any reason they wish are at it again. Their latest whine is that arbitration of employee terminations is bad because arbitrators reinstate employees more often than the MSPB. It is true that they do, but the authors of this argument “shirk” the very good reasons why this happens. I am not sure whether to pity their laziness or condemn them as habitual liars. But while I figure that out here are the reasons why arbitrators justly reinstate a higher percentage of terminated federal employees.
First, a terminated employee cannot get to arbitration before a professional neutral unless the union agrees, and the vast majority of unions are not going to take weak cases to arbitration. That wastes union funds and builds bad precedent. So, arbitrators get cases with much higher odds of success than MSPB.
Second, by keeping from MSPB more likely to win cases, MSPB becomes the place where everything else is dumped. That includes cases where the union rejected arbitration because it agreed the employee should be fired, the cases where fired employees hire their local real estate lawyer to file their appeal despite his breath-taking ignorance of federal employee law, and even worse try to represent themselves, i.e., the employee has a fool for a client. In contrast, unions usually appoint lawyers with decades of federal personnel law experience to represent members at arbitration.
Third, history has shown some Board members come to the job prejudiced against federal employees. They consider them leaches on the public who should all be replaced by profit-making contractors. They rarely have any experience or credentials as a neutral. And I can remember one who thought only Christians should work for the government. So, even if MSPB got precisely the same cases as arbitrators do, it is likely employees would lose more often thanks to politics.
Fourth, a foundational philosophy of the MSPB is that it should be easier to fire federal employees. In contrast, arbitrators are more likely to see the accused employees as an asset the public has spent tens of thousands training and developing, and as assets rather than leaches something that should be tossed in the trash only as a last resort. Imagine a federal office bought a $100,000 computer only to find that it operated slower than expected. Do you think the public would be thrilled to hear that the managers responded by tossing the $100,000 machine in the trash? Or would they expect the managers to make every effort to correct the problem? MSPB supports the trash bin solution; arbitrators support the public’s interest. Need another analogy? MSPB are the hanging judges; arbitrators are true jurists.
Fifth, MSPB is like going on a blind date. You commit to the MSPB appeal process without any idea of the quality of the person you will have a hearing date with. In contrast, arbitrators are normally selected jointly by the labor and management parties. That means the parties can do some research into how the selected arbitrator runs his/her hearings, writes, applies the law, etc. There are online research services available equally to both parties to not only get a sense of how often arbitrators rule for one party over the other, but also the quality of their reasoning. Moreover, if an arbitrator upsets either party, s/he can be unilaterally terminated. If an agency wants arbitrators who they believe lean their way, they can bargain for that.
So, when I read so-called academic articles condemning arbitrators because they reinstate terminated employees more often than MSPB, I wonder why none of these points are factored into their pseudo-science analyses. I am reluctant to call it outright lying, deception and even a con. So, for now let’s just say that what these faux-academics of the political fringe do is “shirk.”