Joseph Sharnoff is one of the top labor arbitrators in the country, but that meant nothing to the Federal Circuit Court of Appeals when it reviewed his decision in an adverse action case. The result seems to be a new set of standards arbitrators must meet when they deal with similar cases.  Here is a quick view of the court’s criticisms in Binta M. Robinson v. U.S Patent and Trademark Office, (Fed. Cir., 12/21/2021)

First, Sharnoff had ruled he did not have jurisdiction to address the merits of the employee’s grievance opposing his termination because the employee had also filed an EEO complaint.  The arbitrator held that under FLRA precedent the employee could only pursue the EEO or grievance-arbitration path, not both. But the court decided that MSPB, not FLRA case law applies in adverse action cases. Under it, the grievance, having been filed before the employee’s EEO complaint, was within his jurisdiction and took precedence over the later filed EEO complaint.  That is a good thing because the current FLRA precedent on the issue is a mess of confusion and risk for both parties thanks to Trump’s appointees.

Second, the court then addressed Sharnoff’s ruling that an additional bar to jurisdiction was the fact that four years had passed since the union invoked arbitration.  Sharnoff wrote, “During the delay, as listed above[,] the Agency and/or the Arbitrator repeatedly requested the Union to propose and/or confirm dates for the Arbitration hearings[,] which requests resulted in no response on several occasions and requests for delay on many additional occasions.” Consequently, “the Arbitrator finds that cumulatively, the total of about four years of delay is excessive and unreasonable.”

The employee challenged that ruling arguing that the contract did not contain any deadline. The court signaled initial support for Sharnoff’s position writing, “While it is correct that the CBA does not require that an arbitration hearing be held within a specific time frame, it does recognize the ‘importance of considering and resolving complaints and grievances promptly ….’ It seems well within the authority of the Arbitrator to adjudicate this matter while policing a reasonable and prompt progression of the proceedings.” However, in the end the court reversed Sharnoff’s decision because he addressed the various delays cumulatively rather than individually.  It wrote,

“…the Arbitrator concluded that some unspecified number of unidentified delays occurred for “valid reasons,” it was nonetheless his view that the “cumulative effect” of the delays constituted unreasonable delay. Indeed, the paragraph repeatedly refers to (1) the “cumulative effect” of the delays (without identifying an effect other than the passage of four years) and (2) the unidentified “compelling reasons” for some unspecified delays (without parsing which or how many of the delays were valid). We conclude that this cursory treatment is insufficient under the circumstances of this case. In sum, the Arbitrator’s recapitulation of the arbitration timeline failed to deal in any way with Ms. Robinson’s comprehensive analysis and explanation of the events leading to delay. Even if the Arbitrator had determined that the explanations provided by Ms. Robinson were insufficient, he was required to provide a reasoned basis for such a determination before dismissing Ms. Robinson’s grievance for unreasonable delay. The Arbitrator’s opinion provides no such rationale.”

Third, the court concluded that the Arbitrator’s decision improperly failed to address prejudice stemming from the delay because it contained no analysis by the Arbitrator of what, if any, effect was suffered by the agency because of the purported delay other than the passage of time. The court seemed particularly perturbed that Sharnoff’s decision merely contained a summary of the agency’s argument rather than his own recitation of the basis for his decision. That left the judges not knowing what, if any, portion of the agency’s reasoning he adopted.

But even if the Arbitrator had included the words “I agree” at the conclusion of the cited paragraph, the court wrote that still would have been insufficient. It wanted a detailed explanation of how a party was prejudiced by the delay. Given that the core of the prejudice argument was that some potential witnesses had left the agency and were no longer available, the court wanted to know, “…why unavailability of an employee ancillary to the removal process would be prejudicial enough to warrant dismissing Ms. Robinson’s grievance, particularly when the Proposing and Deciding Officials for the removal action were expected to be available.”  It flatly stated that “…a potential witness’s departure from an agency does not necessarily constitute witness unavailability.” The arbitrator, “… failed to indicate why the departure of any of the aforementioned agency employees would have uniquely disadvantaged the agency’s case.”

In the end the court vacated the arbitrator’s decision leaving the employee’s termination in place and remanded for further proceedings. Although the court labeled this a non-precedential decision, ignore it at your own risk.

Unions would be wise to take away the following messages:

  1. Watch for arbitrators applying the incorrect forum selection rule, e.g., grievance, EEO complaint, ULP charge, etc.
  2. Unagreed delays in a hearing require that the union be able to justify each delay before the arbitrator.
  3. When claiming prejudice be prepared to explain why or how the alleged offense specifically hurt your ability to defend the employee.

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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