This blog post will cover Arbitration, Collective Bargaining, and Just Cause in the Federal Government. Collective bargaining occurs in both the public and private sectors, however, it’s not the same. The fundamental issues of pay, benefits, management rights, and more are all fixed by Congress.
5 USC, Chapter 71, Sections 7121-7123 requires all collective bargaining agreements provide a provision for a grievance procedure and binding arbitration. However, these procedures must still operate subject to rules governing arbitrability, such as the arbitrator is bound to follow MSPB procedures and regulations. The arbitrators used in federal grievances come from the same body of arbitrators that the private sector uses. They generally have more exposure to the private sector than the public and when deciding adverse action, they typically look to whether managements’ action meets a “just cause” standard.
Agencies are authorized to subject employees to adverse actions “only for such cause as will promote the efficiency of the service”—5 USC § 7513(a). Therefore, efficiency of service is a critical component of disciplinary actions.
Deborah Morgan v. U.S. Postal Service (1991) gave a definition of “the efficiency of the service”. MSPB noted that “an adverse action promotes the efficiency of the service when the grounds for the action relate to either an employee’s ability to accomplish his duties satisfactorily or some other legitimate government interest.”
Just cause is a common standard in labor arbitration used in the private sector labor union contracts in the U.S. It is used as a form of job security. Another definition, from Blacks Law Dictionary, defines it as “good cause”, meaning there is a legally sufficient reason for the action to have occurred and the burden is placed on the grievant to show why his/her request should be granted to overturn an action. Just cause provides protections against arbitrary or unfair terminations or other forms of inappropriate workplace discipline.
In 1964, arbitrator Dr. Carroll Daugherty developed a seven-part standard where the discipline or discharge of an employee is analyzed and can be upheld as a just cause action if management can favorably answer the following 7 questions:
The employee knew of the employers’ policy
- Agencies have a legal and contractual right to manage its workforce with rules and policies. However, the agency has an obligation to inform the employees about their meaning and application.
- The employer must advise the employee that any act of misconduct or disobedience could result in discipline.
- That statement should be clear, unambiguous, and inclusive of any possible penalties.
The employer policy is reasonable
- The workplace rule/policy must not be arbitrary or discriminatory and must be related to the employers’ stated goals/objectives.
- Even if the grievant believed the policy is unreasonable, the grievant must obey, except in cases when doing so would jeopardize their health or safety. This is the old obey and grieve rule.
Was there a sufficient investigation?
- Did the employer investigate before deciding about taking disciplinary or adverse action?
- The employer is the judge, jury, and prosecutor in discipline cases. They bear all obligation to collect any and all relevant facts to the final decision.
Was the investigation fair and objective?
- The employer has an obligation to conduct a fair, timely, and thorough investigation that respects the employees’ rights to union representation and due process.
- Once completed, all facts must be evaluated with objectivity, free from bias or preconceived conclusion.
Substantial evidence exists that the employee violated policy
- Did the investigation disclose any substantial proof/evidence that the employee was guilty of violating/disobeying a direct rule/order?
- The evidence does not have to be “beyond a reasonable doubt” but it must be truly substantial.
- The investigation must be thorough and include a search for any evidence that may clear the individual of wrongdoing.
- If the offense cannot be proven, no action should ever be taken because it won’t be considered just.
The employees’ policy has been consistently applied
- Did the employer apply all rules, regulations, and penalties evenly and without discernment to all employees?
- Were other employees who committed the same offense treated differently? If there was any evidence of discrimination, both could automatically violate this test.
Discipline was reasonable and proportionate
- Was the degree of discipline administered reasonably related to either the seriousness of the employees’ offense or to the record of past service?
- The proven offense doesn’t merit harsh discipline unless the employee has been proven guilty of the same (or other) offenses several times in the recent past.
- The employees’ past record can’t be used to prove guilt in the current case, but it can be used in determining the severity of discipline if guilt is established.
- If two or more employees are found guilty of the same offense, their respective records can/should be used to determine individual discipline. The employer has a right to give a lesser penalty to an employee whose employment record doesn’t have prior offenses. This should not be viewed as discriminatory. The reverse can also be true.
- The employees’ offense may be excused through mitigating circumstances.
The general rule is if an employer can satisfy these 7 factors, then their defense of a grievance will have a greater probability of being sustained. MSPB jurists use the Douglas Factors to evaluate merits of an agency’s actions and decisions. In many ways, these 7 factors resemble those.
If a grievance doesn’t satisfy these 7, it’s likely to not stand.