AFGE just got a MSPB decision loaded with lessons for parties on both sides of the table, but especially for the person sitting at the head of the table, namely, the arbitrator.  When an arbitrator upheld an employee’s removal for unacceptable performance, AFGE legal counsel  wisely realized this was one of those rare cases where MSPB was likely to overturn the arbitrator due to technical flaws in the decision. Under law, an employee can appeal an adverse or unacceptable performance action arbitration decision to MSPB if s/he meets the following criteria:

(1) the subject matter of the grievance is one over which the Board has jurisdiction;

(2) the appellant either (i) raised a claim of discrimination under 5 U.S.C. § 2302(b)(1) with the arbitrator in connection with the underlying action or (ii) raises a claim of discrimination in connection with the underlying action under 5 U.S.C. § 2302(b)(1) for the first time with the Board if such allegations could not be raised in the negotiated grievance procedure; and

(3) a final decision has been issued.

The employee in this case met those criteria, permitting AFGE to unleash one of its characteristic junkyard dog legal assaults. (In contrast, see Carrington and DHS, MSPB Doc. No. CB-7121-16-0015-V-1 (June 29, 2016) where a Customs and Border Protection Officer filed a similar appeal with MSPB seeking to have it overturn an arbitration decision only to have the Board reject jurisdiction because the union attorney had not raised the discrimination issue at the arbitration under the NTEU contract. That is a critically important step for union field attorneys who wish to preserve a member’s full appeal rights.)

To begin, it argued that the employee had orally requested a reasonable accommodation for a disability more than 18 months before she was fired, testified to that fact, and no one in the agency bothered to rebut her testimony. (In fairness, the supervisor to whom she spoke had died, making him highly unavailable to testify.) The employee said she repeated the request when the agency began taking action against her and again no one in the agency disagreed. Consequently, when the arbitrator summarily dismissed her testimony as uncorroborated, the AFGE attorney promptly pointed to MSPB precedent holding that uncontradicted disability or medical-related testimony should be given great weight when there is no reasonable basis to discredit it. MSPB agreed, holding that this error, along with those that follow, are grounds for overturning the decision.

The Board also wrote that the arbitrator’s decision was “cursory and that he failed to consider all potentially relevant issues.”  Its requires arbitrators doing these cases to “cite any legal standard and set forth the analytical framework for adjudicating the appellant’s discrimination claim.” This arbitrator did neither. The Board was particularly upset that the arbitrator seemed to construe the employee’s request for a reasonable accommodation merely as a disability discrimination claim when he was required by law to also analyze the claim under the Pregnancy Discrimination Act.  The lesson for future arbitrators is that the Board is telling them that when the record is not clear as to precisely what discrimination claims the employee is making that the arbitrator has the burden to ask the employee to be clear and then apply the law associated with those claims. If he fails to, then he had better address all possible bases for a discrimination claim. (Of course, the agency also should push for clarity on unspecified discrimination claims even when the arbitrator fails to.)

Finally, the Board said the arbitrator was wrong to refuse to accept into evidence some management emails the employee’s union had obtained through a particularized need request. The arbitrator said that because they were not available under the FOIA that they could not be considered as evidence–only to have the Board tell him that he was flat wrong about that.  The Board held that the 5 USC 7114(b) right unions have to information overrides any FOIA hurdle.

The Board did not remand the case to the arbitrator to give him another chance to get it right, but rather sent it to one of its regional Administrative Judges to process under the correct legal standards. AFGE did all unions a favor by showing that the MSPB can be a helpful stop to make before taking an adverse arbitration decision directly to the Federal Circuit Court of Appeals.  Agencies should also read this case as advising them to guide the arbitrator along the proper decisional path. That is not just the union’s job because even if they get it wrong before the arbitrator or s/he does not believe the union the agency is going to pay the price with a remand and potentially far larger back pay and attorney fee award. See Konstantina Tatsis v. HUD, MSPB Doc. No. CB-7121-16-0003-V-1 (June 16, 2016)

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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