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Union arbitrators routinely reinstate fired federal employees who grieve their dismissals according to an analysis of cases conducted by a think tank. The conservative-leaning America First Policy Institute says the arbitrators’ rate of reinstatement is way higher than that of the Merit Systems Protection Board. For details the Federal Drive with Tom Temin  spoke to the director of the Institute Center for American freedom, James Sherk.

Interview transcript:

Tom Temin: first of all, tell us how you got to this data on reinstatements by arbitration, and what do you precisely mean by a union arbitrator?

James Sherk: So in the federal sector, if you’re represented by a union, you have an option if your agency tries to fire you. you can appeal to the Merit Systems Protection Board what we think of as these standard civil service protections. But you can also file a grievance under your union contract, it’s an either or you can’t do both. But if you choose to, you can file a grievance under the union contract, and your union can bring that instead to an arbitrator. Generally,  these are private contractors, they work with the private sector unions, with the private companies with nothing to do with unions, as well as with the the federal workforce, there’s a master roster, maintained by the Federal Mediation Conciliation Service, and the contracts pretty much all say, you’ll get a list of names from this master roster, people strike names to union agency until one guy’s left. That guy then is the arbitrator.

Tom Temin: And does the agency get a say on who the arbitrator is?

James Sherk: Basically, the unions and the agency has have an equal say. Typically varies from contract to contract, but typically, they’ll say FMCS give us seven names, and then each party takes a turn striking a name until no one’s left. So both parties have about an equal role in the selection of the arbitrators. The arbitrator then basically acts like a an administrative law judge or another administrative adjudicator. They’re not a federal employee or a contractor hired for just this case. But they do hear the arguments from both sides and hand down a decision. And typically that decision cannot be appealed by the agency. If the employee doesn’t like it, they can appeal to the federal courts. But the agency in almost all cases cannot appeal that decision. reinstating the employee.

Tom Temin: Got it, and you got access to a large number of cases. Tell us the number and how you got them.

James Sherk: So we got over 400 arbitration awards, executive order 13836 required all  agencies to submit their arbitration agreements to the Office of Personnel Management after they were handed down. Before then, agencies had not been coordinating and tracking how the arbitrators were ruling government-wide. The union’s of course do it. They keep track of how individual arbitrators rule, but there was no centralized government database. So executive order 13836 said, send them all to OPM, so OPM can take a look at what’s going on. President Biden rescinded that executive order, but OPM under the Biden administration has continued that policy. So agencies are continuing to send their awards to OPM. We sent in a Freedom of Information Act request. These are public records, we got a first tranche of about 400-plus arbitration awards. So it’s not all the awards that OPM has. We know they’re continuing to work on producing them. But it’s a pretty representative sample of several 100’s of arbitration awards, dealing with a number of issues; dealing with suspensions, dealing with removals, and then dealing with issues that have nothing to do with the personnel issues whatsoever. So it’s the first time it’s  kind of exciting as a researcher, that we now have this ability, where with the merchants inspection board, they publish their cases, there’s an annual report, but there’s been nothing to analyze how these arbitrators handle these cases. And then because of the executive order, in the Freedom of Information Act, we were able to do that.

Tom Temin: And what did you find?

James Sherk: We find that arbitrators reinstate employees in about three-fifths of cases. So if you’re an employee who gets laid off and appeals to the Merit Systems Protection Board, you have about a bit more than one chance in four that MSPB will give you your job back. When you go to an arbitrator, it’s about three chances in five. And that’s a portion of that is where they say, all right, look, the guy did something wrong, he deserved to be punished, but we’re going to mitigate the punishment to a suspension, give him his job back. And then other cases where they just overturned it entirely.

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Tom Temin: We’re speaking with James Sherk, director of the Center for American Freedom at the America First Policy Institute. Could there be a qualitative difference in the types of cases that go to MSPB versus those that go to arbitrators that could explain this discrepancy in reinstatement levels?

James Sherk: Well, look, it’s possible, right? I mean, the the unions have a choice, you know, do they bring a case to arbitration? Right. So if the union thinks the case is a sure loser, they’re probably not going to bring it. At the same time the agencies, generally it’s an exhaustive process. Anyone who’s worked with the career staff in these agencies, you know, it’s not like the supervisors waking up one morning and firing someone because he ate something wrong for breakfast. It is about a six month to a year process of gathering the evidence and navigating all the steps necessary to fire someone. And so the agencies are taking a long hard look and saying can we justify this will it get overturned on appeal? In most cases, the employees get back pay. If you get reinstated. You typically get back wages for the time that you weren’t employed. And that can be a huge financial hit to the agency on top of their litigation costs. In many cases, they have to pay the attorney’s fees. So the agencies are pretty selective in who they fire. And it doesn’t happen all that often. And then the unions also have the ability to be selective. In the cases they bring arbitration. So like, we can’t rule that out. But what we do say is that when the union’s bring it to arbitration, more often than not the arbitrator says you get your job back.

Tom Temin: Interesting. And so what do we make of this information?

James Sherk: Well, I think it’s explains why we see, it’s part of the reason why there’s such a high degree of frustration among federal employees themselves with performance and misconduct issues in the federal workplace. You know, the government spent a lot of money each year conducting the Federal Employee Viewpoint Survey to basically take the pulse of the federal workforce, what do you like? What don’t you like? And consistently, year after year after year, one of the two highest pain point questions, it’s either number one number two every year, is how satisfied are you with how your agency addresses poor performers? And do they take actions when it’s necessary, if someone were removed. Like you just every single year, you see this incredible dissatisfaction. And I think part of the reason is we’ve got this system where if you’re in an agency, and you try and fire someone, you’re trying to, especially if they’re in the union, and then they can take it to arbitration. If the union grieves that, you know, more likely than not, the the worker gets the job back. But it takes about a year and a half. The agency is then on the hook for about a year and a half of back wages. Many cases, they also order attorneys fees, that is just a like, you’ve really got to have it up to your neck to be willing to put in that much time and effort for something that if the union grieves it, you know, you know, it’s more likely than not that the employees coming back. And yeah, same thing with misconduct. I mean, we’ve seen all sorts of cases you going through these awards, you just find some horrific cases. To take one example, there was an employee with the Department of Veterans Affairs, who got arrested for and pled guilty to possessing meth with the intent to distribute it. Not surprising, that’s not the kind of person that VA wanted in there. They fired him after he pled guilty to the charges. And an arbitrator ordered him reinstated. And the the grounds was like you didn’t actually prove that, you know, him having this meth was any impediment to his job at VA. So therefore, you know, since there’s not a job related connection, I mean, come on, what do you like the guy got arrested and pled guilty to intending to distribute meth. Those are people you don’t want on the VA workforce. But the agency had to reinstate him.

Tom Temin: Given that the union has the option and the discretion to go to arbitration, but the agency does not, could have be and I hate to malign a whole profession, but it’s good for business, for the arbitrators, if they tend to mitigate toward the union, toward the employer. I think that is one of the concerns, right? The the unions, and especially before 13836, the unions are tracking how the arbitrators rule, and it’s a roster of several 1000 arbitrators. But when the unions are going to arbitration, hundreds of times or more a year, they start saying the same names come up over the lest again, and again, and again. Sort of like Santa Claus, they’re making a list and checking it twice. And if you’re ruling consistently against them, then they’re going to strike your name off the list. And that’s it. Like that’s the union’s duty to their clients. I don’t sort of fault them for acting that way. That’s they have a duty of fair representation. They shouldn’t be doing that. But it creates an incentive for the arbitrators where they know if I rule too often against the unions, I’m not going to get these these jobs again. And historically, agencies have just not done the same thing. Right, any particular agency, or subcomponent of an agency is only in arbitration, maybe a few dozen times a year, they’re not seeing the same names come up over and over again. And so the arbitrators, I think it creates a tendency for them to want to try and split the baby. This is a long standing complaint among federal career staff. I served as a political appointee in the prior administration, I work in civil service issues, and spoke with a number of senior career staff who worked in these HR roles. And broadly speaking, are not people who are conservatives and sort of share my worldview, but also very professional and want their agencies to run well. And the the arbitrators, it was a constant complaint on their part, that the arbitrators would just try and mitigate anything, they’d always try and split the baby. They never wanted to give the union a complete loss. And that was actually hearing those anecdotal reports was the motivation for this report. That we’ve created a system where the arbitrators have a financial incentive, not yet to basically try and split the baby and not really against the union’s too frequently, at least if they want to keep getting the federal arbitration work. Now, their professional code of ethics is such that they’re not supposed to do that. It says you’re not supposed to issue compromise rulings, so that parties will pick them in the future. And the law says they’re supposed to be applying the same standards to the MSPB. But look, people are only human. You know, if you know that your paycheck sort of depends on your ruling a certain way, then it takes a lot of integrity to not rule that way, especially in a closed case. And I think it’s just a problem. We’ve set up the system where the the arbitrator’s deciding these cases do have a financial incentive to try and split the baby even if the facts of the situation Are you saying that one party is in the right one party is in the wrong.

Eric White: James Sherk is director of the Center for American freedom at the America First policy institute.

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