There are roughly 1.6 million tenured federal employees with at least two years of experience. In fiscal year 2021, agencies fired 4,040 of these employees. That amounts to roughly one-quarter of one percent of the federal government’s tenured employees.
These numbers sit at the heart of a recent report by James Sherk. Working with the conservative policy group, America First Policy Institute, Sherk asked why it’s so hard for agencies to fire underperforming employees. One of the things he learned was that union employees were far more likely to win reinstatement through arbitration than through an appeal to the Merit Systems Protection Board (MSPB).
Arbitration versus appeals to the MSPB
Sherk collected some of the first information available about the effectiveness of arbitration for federal employment disputes. He was able to gather this information because the Office of Personnel Management (OPM) started to collect it on the heels of executive order 13836. Although President Biden rescinded the order, the OPM has continued to collect information about arbitration.
Sherk received records for 435 employees who filed grievances for arbitration through their unions. The results offered a startling contrast between arbitration results and MSPB appeals:
- Nearly three-fifths (58%) of the employees who filed for arbitration won reinstatement
- Only 28% of the employees who appeal to the MSPB win reinstatement
As Sherk sees things, this serves as an indictment of the arbitration process. Sherk and the America First Policy Institute believe that agencies need to be able to fire employees more easily. Sherk makes certain to feature the results of the Federal Employment Viewpoint Survey (FEVS). These reveal that only 36% of federal employees believe agencies take adequate steps to deal with poor performers.
However, there are other ways to look at the information within Sherk’s report, and Federal News Network featured some of them in an interview that Tom Temin conducted with Sherk.
Why do we see the differences between arbitration and appeals to the MSPB?
It’s important to note that only employees represented by a union can take their disputes to arbitration. This immediately rules out many federal employees. It also means that the employees taking their disputes to arbitration work in roles covered by bargaining agreements.
Even so, as the Federal News Network interview revealed, there are other issues to consider:
- Arbitrators may have financial incentive to “split the baby” and offer something to each side. Both the employees and agencies receive a list of several names from a registry of several thousand. They can either agree on an arbitrator or take turns crossing off names until only one name remains. Arbitrators who too often favor the agencies won’t survive the employees’ vetoes. Arbitrators who find too often in favor of the employees won’t survive the agencies’ vetoes. Accordingly, arbitrators may have reason to offer concessions to both sides.
- Unions do not have to represent the cases they see as “losers.” If union representatives choose to work only with the cases they see as “winners,” this information may skew the numbers. Sherk’s report does not address this fact.
- The arbitration process takes a long time. It tends to take longer than appeals to the MSPB. MSPB appeals tend to take a total of nine months, beginning to end. Arbitration takes an average of 17 months, and agencies had to pay back wages to 84% of the employees they reinstated.
Notably, these facts all address the ways that union arbitration works differently than appeals to the MSPB. And they certainly don’t cover all the differences.
While the numbers suggest employees with union representation will certainly want to consider arbitration, they may not reflect such a truly one-sided story as the report presents. Among other things, it’s worth noting that we’re looking at a small sample size—just 435 cases from a single year. Additionally, the numbers do not address the ways that employees may improve their chances before the MSPB with better representation.
Firings are down across the board
While Sherk’s report may present some eye-opening numbers, it’s worth remembering that his goal was to argue for easier terminations. It may seem incredible that federal agencies fire only one-quarter of one percent of tenured employees, but firings are down across the board. This is true for the private sector, as well. In February 2022, Vox reported that job openings were at near-record highs while terminations had hit record lows.
The information in Sherk’s report is definitely worth consideration. However, employees facing termination or disciplinary actions want to base their courses of action on knowledgeable advice. Don’t be swayed too easily by statistics that lack sufficient context. The right response to proposed discipline requires specific knowledge of your situation.