DONALD J. DEVINE, DIRECTOR, OFFICE OF PERSONNEL MANAGEMENT, PETITIONER V. ALLISON E. NUTT, ET AL. No. 83-1673 In the Supreme Court of the United States October Term, 1984 On Writ of Certiorari to the United States Court of Appeals for the Federal Circuit Brief For The Petitioner PARTIES TO THE PROCEEDING In addition to the parties named in the caption, the General Services Administration and the American Federation of Government Employees, AFL-CIO, Local 3275, were respondents in the court of appeals. Thomas Rogers and Robert Wilson, Jr., were the grievants in the arbitration proceedings. TABLE OF CONTENTS Question Presented Parties To The Proceeding Opinions below Jurisdiction Statutory and regulatory provisions involved Statement Summary of argument Argument An arbitrator may set aside adverse agency action taken against a federal employee because of procedural error only when that error might have affected the agency's decision A. An error is harmful within the meaning of the Civil Service Reform Act only if it prejudices the individual employee B. The court of appeals' approach runs counter to congressional intent by encouraging forum shopping and inconsistent decisions in adverse action proceedings C. A union may not assert violations of its procedural rights in the context of an individual employee's challenge to adverse agency action Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-16a) is reported at 718 F.2d 1048. The order of the court of appeals denying respondents' motion to dismiss (Pet. App. 17a-20a) is unreported. The arbitration decision and award of respondent Nutt and his revised award (Pet. App. 21a-39a, 40a-41a) also are unreported. JURISDICTION The judgment of the court of appeals (Pet. App. 42a) was entered on September 22, 1983. A petition for rehearing was denied on November 18, 1983 (Pet. App. 43a). On February 10, 1984, the Chief Justice extended the time for filing a petition for a writ of certiorari to and including April 16, 1984. The petition was filed on April 13, 1984 and was granted on October 1, 1984. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY AND REGULATORY PROVISIONS INVOLVED 5 U.S.C. 7701(c) provides in pertinent part: (1) Subject to paragraph (2) of this subsection, the decision of the agency shall be sustained under subsection (b) only if the agency's decision -- (A) in the case of an action based on unacceptable performance described in section 4303 of this title, is supported by substantial evidence, or (B) in any other case, is supported by a preponderance of the evidence. (2) Notwithstanding paragraph (1), the agency's decision may not be sustained under subsection (b) of this section if the employee or applicant for employment -- (A) shows harmful error in the application of the agency's procedures in arriving at such decision * * *. 5 U.S.C. 7121(e)(2) provides: In matters covered under sections 4303 and 7512 of this title which have been raised under the negotiated grievance procedure in accordance with this section, and arbitrator shall be governed by section 7701(c)(1) of this title, as applicable. 5 C.F.R. 1201.56(c)(3) defines "harmful error" as: Error by the agency in the application of its procedures which, in the absence or cure of the error, might have caused the agency to reach a conclusion different than the one reached. The burden is upon the appellant to show that based upon the record as a whole the error was harmful, i.e., caused substantial harm or prejudice to his/her rights. QUESTION PRESENTED The Civil Service Reform Act of 1978, 5 U.S.C. 7701(c)(2)(A), empowers the Merit Systems Protection Board to set aside adverse agency action taken against a federal employee if the employee can show that a procedural error committed by the agency caused substantial prejudice to his rights. The question presented is whether the statute requires a different "harmful error" rule to be applied when a federal employee who is a member of a bargaining unit seeks review of adverse agency action before an arbitrator. STATEMENT 1. As the court of appeals observed (Pet. App. 2a), the facts of this case "do not provide an example of model conduct by government employees." During January 1982, Thomas Rogers and Robert Wilson, Jr. (the grievants) were employed by the General Services Administration (GSA or the Agency) as Federal Protective Service (FPS) officers at the Denver Federal Center in Denver, Colorado (id. at 2a, 23a). On January 7, 1982, Rogers, while on patrol in a government vehicle, drove to his home in a nearby suburb and picked up several cans of beer at his supervisor's request. /1/ Rogers then returned to the FPS command center and delivered the beer to his supervisor. The supervisor drank the beer and left the empty cans at the command post when he went off duty. Id. at 2a-3a, 23a-25a. The following day, the supervisor, while off duty, became concerned that the presence of the empty beer cans would lead to the discovery of his drinking at the command post. He therefore telephoned Wilson, who was then on duty at the command post, and instructed him to alter the monitor tapes of the previous day's telephone conversations between the command post and patrolling FPS officers to include a spurious explanation for the presence of the beer cans. /2/ Wilson complied with the supervisor's request. Pet. App. 3a, 25a. On January 25, 1982, and FPS official who was monitoring the tapes for unrelated reasons discovered irregularities that led her to believe that Wilson and the supervisor had edited the tapes to conceal the consumption of bear at the command post. As a result, special agents of GSA's Office of the Inspector General commenced an investigation of the incident. Two agents went to Rogers' home and asked him to accompany them to the local police station for a "non-custodial" interrogation. The agents subsequently interviewed Wilson in a similar fashion. Neither Rogers nor Wilson was advised that he was entitled to have a union representative present during the interview, and neither requested the presence of a representative. Pet. App. 3a-4a, 25a-27a, 33a. /3/ Approximately one month later, the agents met with each of the grievants and asked them to sign affidavits prepared from notes taken by the agents during the interviews. After making substantial changes, both grievants signed the affidavits. Id. at 4a, 28a, 35a. On April 2, 1982, GSA formally notified the grievants that it proposed to remove them from their positions with the Federal Protective Service. After receiving the grievants' written responses to the charges, the Agency issued a removal notice to Wilson for falsification of tape recordings and attempting to conceal activities of record. Rogers likewise received a removal notice for falsification of records, failure to report irregularities and use of a government vehicle for non-official purposes. Pet. App. 4a, 28a-29a. 2. Under the Civil Service Reform Act of 1978 (CSRA) or the Act), 5 U.S.C. 2301 et seq., any federal employee who is subject to adverse agency action" -- removal, suspension for more than 14 days, reduction in grade, reduction in pay or furlough of 30 days or less -- may appeal to the Merit Systems Portection Board (MSPB or the Board). See 5 U.S.C. 4303(e), 7513(d), 7701. Alternatively, and employee who, like the grievants in this case, is a member of a bargaining unit may challenge adverse agency action through the grievance arbitration procedures contained in the collective bargaining agreement between his union and his employer. 5 U.S.C. 7121(e)(1); see generally Devine v. White, 697 F.2d 421, 428 (D.C. Cir. 1983). In deciding such an appeal, the Board must, depending upon the nature of the employee's conduct, sustain agency action that is supported by substantial evidence (5 U.S.C. 7701(c)(1)(A)) or a preponderance of the evidence (5 U.S.C. 7701(c)(1)(B)). When such evidence exists, however, the grievant still may prevail by "show(ing) harmful error in the application of the agency's procedures in arriving at (its) decision." 5 U.S.C. 7701(c)(2)(A). Arbitrators who judge challenges to adverse action that are brought under negotiated grievance procedures must apply these same substantive standards. 5 U.S.C. 7121(e)(2). 3. a. Both employees in this case elected to challenge their removal under the procedures established by the collective bargaining agreement between GSA and their union, respondent American Federation of Government Employees. The arbitrator (respondent Nutt) found (Pet. App. 32a) that the grievants had committed the acts alleged "and thereby substantiated (the) charges made against them sufficient under normal circumstances to justify their removal from government service." While the arbitrator also found (id. at 32a-34a) that the employees had not been offered the opportunity to have a union representative present during the interrogation, as required by Article XXVII, Section 2, of the collective bargaining agreement (see not 3, supra), /4/ he observed that the grievants "were (not) entirely unaware of their right to representation during an investigative interview" (Pet. App. 34a; see id. at 35a). Accordingly, the arbitrator concluded (ibid.) that the "procedural irregularit(ies) may not have been prejudicial," so that an "emphasis upon technicalities would be inconsistent with the informal atmosphere of the arbitration process." The arbitrator also accepted the Union's contention that the Agency violated Article XXVII, Section 3, of a supplement to the collective bargaining agreement by failing to issue the notices of proposed removal within a reasonable time after it first learned of the offenses (Pet. App. 36a-37a). /5/ But he further noted (id. at 37a-38a) that "(t)he Union has not claimed or attempted to show that the interests of the Grievants were in any way prejudiced by the inordinate delay in issuance of the notice of adverse action * * *." Notwithstanding his explicit findings that the grievants had committed the alleged misconduct, that the misconduct would normally justify the penalty of removal from government service, and that the procedural defaults had not prejudiced them, the arbitrator held that the grievants' removal was not for just cause "(s)olely because of the Agency's pervasive failure to comply with the due process requirements of the (collective bargaining) agreement" (Pet. App. 38a). The arbitrator therefore reduced the penalties imposed on the grievants from removal to two weeks' suspension without pay (id. at 38a-39a). /6/ b. The court of appeals substantially affirmed the decision and award of the arbitrator (Pet. App. 1a-16a). /7/ The court acknowledged (id. at 10a; see also id. at 5a) that the violations of the collective bargaining agreement "were not personally prejudicial to grievants Rogers and Wilson." It further held, in view of Congress' express intent "to promote consistency *** and to avoid forum shopping" (H.R. Rep. 95-1717, 95th Cong., 2d Sess. 157 (1978)), that the harmful error" standard set out in 5 U.S.C. 7701(c)(2)(A) must be employed by arbitrators "in deciding whether a grievant was personally prejudiced." Nevertheless, the court of appeals concluded (Pet. App. 12a) (emphasis added)) that "the arbitrator can take account of significant violations of the collective bargaining agreement, important to the union, even though the particular grievants may not have been themselves adversely affected." The court explained (id. at 12a-14a (emphasis in original; citations omitted) ): The union is a major (if not the major) party to the arbitration and its proper interests are to be protected, even though the interests of the particular grievants may not, alone, call for protection. * * * * * * * * (T)he presence in the contract of these procedural safeguards concerning representation and notice is evidence of their substantiality and importance to the union and its members covered by the agreement. They also appear, of themselves, to be significant measures for the union and its members. * * * Violations of explicit and important procedural rights contained in a contract, such as these, could fairly be said to be tantamount to "harmful error" to the union within the scope of 5 U.S.C. Section 7701(c)(2)(A) (1982) for the purposes of collective bargaining arbitration in which the union is a proper party. Accordingly, the court of appeals sustained the arbitrator's reduction of the grievants' penalties as a proper means of "penalizing the agency" (Pet. App. 14a). /8/ SUMMARY OF ARGUMENT 1. The Civil Service Reform Act of 1978 provides that adverse agency action may be vacated on account of procedural error only when the affected employee demonstrates that the claimed procedural violation was "harmful." 5 U.S.C. 7701(c)(2)(A). The Merit Systems Protection Board has interpreted this harmful error rule to permit reversal of adverse agency action for procedural errors or for violations of the provisions of a collective bargaining agreement only when the errors "would likely (have) affect(ed) the result of the removal action." Stalkfleet v. United States Postal Service, 6 M.S.P.B. 536, 539 (1981). See 5 C.F.R. 1201.56(c)(3). This straightforward interpretation of the harmful error requirement -- which is fully applicable in the context of arbitral review of adverse agency action (see 5 U.S.C. 7121(e)(2)) -- serves to effectuate the congressional intent. The decision of the court of appeals, however, eviscerates the rule in the context of arbitral proceedings. By allowing an arbitrator to "take account of significant violations of the collective bargaining agreement, important to the union, even though the particular grievants may not have been themselves adversely affected" (Pet. App. 12a (emphasis added)), the decision below disregards the statutory language and the MSPB's binding definition of harmful error. The decision thus flies in the face of Congress's attempt to "streamline() the process for dismissing and disciplining federal employees." S. Rep. 95-969, 95th Cong., 2d Sess. 2 (1978). 2. The court of appeals' decision also frustrates Congress's intent "to promote consistency in the resolution of (adverse action challenges), and to avoid forum shopping." H.R. Rep. 95-1717, 95th Cong., 2d Sess. 157 (1978). It is within "the discretion of the aggrieved employee" (5 U.S.C. 7121(e)(1)) to choose the forum for a challenge to adverse action. Yet if an arbitrator, unlike the Board, is free to grant relief to employees who have not been personally prejudiced by a procedural error, a bargaining unit employee would be foolish to seek review by the MSPB, rather than through a negotiated grievance procedure. As a result, entirely different standards of review will be applied to the two portions of the federal workforce. The 39% of federal employees who are not represented by unions will be able to challenge adverse agency action on account of procedural error only if they can demonstrate that, in the absence of the error, the agency might have reached a different result; the 61% of federal employees who are bargaining unit members will not be required to make such a showing. 3. The court of appeals' erroneous ruling rests entirely on its conclusion that "(t)he union is a major (if not the major) party to the arbitration and its proper interests are to be protected, even though the interests of particular grievants may not, alone, call for protection" (Pet. App. 12a (emphasis in original)). This ruling misapprehends the statutorily prescribed nature of a challenge to adverse agency action and distorts the scheme erected by the CSRA. Under the Act, the procedures providing for challenges to adverse agency action plainly were designed to protect the rights of the aggrieved employee. It is the employee who determines the forum for the challenge (5 U.S.C. 7121(e)(1)), and it is the employee -- rather than the union -- who may seek judicial review from an adverse decision on his claim. 5 U.S.C. 7121(f), 7703. Similarly, the evidentiary standards that govern a challenge require the arbitrator and the Board to base their decision on the employee's situation (5 U.S.C. 7701(c)), and the employee carries the burden of "show(ing) harmful error." 5 U.S.C. 7701(c)(2)(A). Obviously, this statutory structure requires a focus on the rights of the employee. It is true, of course, that the CSRA recognizes the significance of the union's interests. But Congress chose to safeguard those interests by providing unions with distinct remedial procedures. Thus the union may present grievances on its own behalf (5 U.S.C. 7121(b)(3)(A)), and in some circumstances may file unfair labor practice charges with the Federal Labor Relations Authority (FLRA). 5 U.S.C. 7116(d); see Iowa National Guard & National Guard Bureau, 8 F.L.R.A. 500, 510 (1982). Allowing the union's institutional interests also to be asserted in the context of an individual challenge to adverse agency action will lead to forum shopping and inconsistent results, and will make the harmful error rule a dead letter; because the union has other avenues for safeguarding its rights, the court of appeals' decision distorts the congressional scheme to no purpose. Finally, the court of appeals erred in concluding that its holding was necessary to make the collective bargaining process meaningful. Bargained-for rights are not made meaningless simply because non-prejudicial violations of those rights cannot be asserted in individual grievance actions: to the contrary, violation of a contract's provisions will lead to reversal of adverse action whenever it might have had an effect on the agency's conclusions, and the union may in any event itself challenge the error in its institutional capacity. These factors validate the significant role for public employee unions that was created by Congress (see 5 U.S.C. 7101(a)(1)). At the same time, an interpretation of the harmful error rule that permits reversal of adverse agency action only on account of prejudicial procedural error "meet(s) the special requirements and needs of the (federal) Government" (5 U.S.C. 7101(b)) by balancing against the union's interests the need to "preserv(e) the ability of federal managers to maintain 'an effective and efficient Government.'" Bureau of Alcohol, Tobacco & Firearms v. Federal Labor Relations Authority, No. 82-799 (Nov. 29, 1983), slip op. 2 (quoting 5 U.S.C. 7101(b)). The court of appeals erred by disturbing this balance, which was struck by Congress and confirmed by the Board. ARGUMENT AN ARBITRATOR MAY SET ASIDE ADVERSE AGENCY ACTION TAKEN AGAINST A FEDERAL EMPLOYEE BECAUSE OF PROCEDURAL ERROR ONLY WHEN THAT ERROR MIGHT HAVE AFFECTED THE AGENCY'S DECISION Under The Civil Service Reform Act of 1978, federal workders who belong to bargaining units may challenge adverse agency action in one of two ways: they either may appeal to the Merit Systems Portection Board, or they may invoke the grievance procedures set out in their union's collective bargaining agreement. In either event, however, they may obtain relief on account of an agency's procedural mistakes only by "show(ing) harmful error in the application of the agency's procedures." 5 U.S.C. 7701(c)(2)(A). The court of appeals' decision in this case -- which vacated adverse agency action because of procedural violations that concededly "were not personally prejudicial to (the) grievants" (Pet. App. 10a) -- largely eviscerates this statutorily prescribed "harmful error" rule in the context of arbitral review of adverse action. In doing so, the court of appeals disregarded Congress's express intent by creating two distinct standards for review of adverse agency action: one to be applied by arbitrators in appeals by bargaining unit employees and another to be applied by the MSPB. This dichotomy inevitably will lead to forum shopping by bargaining unit employees. And it will, in violation of legislative intent, result in the grievances of bargaining unit members being judged under a different and far more favorable standard than are those of other federal employees. A. An Error Is Harmful Within The Meaning Of The Civil Service Reform Act Only If It Prejudices The Individual Employee 1. a. The CSRA places on a federal employee challenging adverse agency action the burden of demonstrating that a claimed procedural violation was "harmful." 5 U.S.C. 7701(c)(2)(A). /9/ The MSPB accordingly has construed the harmful error standard as requiring a demonstration of prejudice to the individual employee. Pursuant to the authority granted it in 5 U.S.C. 7701(j), the Board has defined "harmful error" as: Error by the agency in the application of its procedures which, in the absence or cure of the error, might have caused the agency to reach a conclusion different than the one reached. The burden is upon the appellant to show that based upon the record as a whole the error was harmful, i.e., caused substantial harm or prejudice to his/her rights. 5 C.F.R. 1201.56(c)(3). /10/ The Board also has explained that, for purposes of Section 7701, "the provisions of (a collective bargaining) agreement shall be treated * * * in the same manner as are provisions of (an) agency's regulations." Stalkfleet v. United States Postal Service, 6 M.S.P.B. 536, 537 (1981). /11/ As a result, an agency's failure to abide by bargained-for procedures may support a challenge to adverse action -- but only when the grievant "show(s) that the agency's failure * * * constituted harmful error which would likely affect the result of the removal action." Id. at 539, citing Fuiava v. Department of Justice, 3 M.S.P.B. 217 (1980); Parker v. Defense Logistics Agency, 1 M.S.P.B. 489 (1980). These conclusions of the Board -- which accord with the definition given the term "harmful error" in other contexts (see, e.g., United States v. Hasting, No. 81-1463 (May 23, 1983), slip op. 6) -- are due considerable deference. See, e.g., Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., No. 82-1005 (June 25, 1984), slip op. 6. Indeed, they are necessary to effectuate Congress's clearly expressed intention that procedural irregularity result in the reversal of agency action "only if the procedures followed substantially impaired the rights of the employees." S. Rep. 95-969, supra, at 64. /12/ b. There is no doubt that the same harmful error standard that governs decisions by the MSPB also must control arbitral review of adverse agency action. The CSRA expressly provides that arbitrators must apply the same substantive standards as does the Board. 5 U.S.C. 7121(e)(2). /13/ The Act's legislative history confirms that "substantial disuniformity between the review powers of arbitrators and of the MSPB would frustrate congressional intent" (Devine v. Pastore, 732 F.2d 213, 216 (D.C. Cir. 1984)): Congress made it plain that "when considering a grievance involving an adverse action otherwise appealable to the MSPB * * * the arbitrator must follow the same rules governing burden of proof and standard of proof that govern adverse actions before the Board." H.R. Rep. 95-1717, supra, at 157. Similarly, Congress made arbitral decisions subject to judicial review "in the same manner and under the same conditions as if the matter had been decided by the (MSPB)" (5 U.S.C. 7121(f)) expressly "to assure conformity between the decisions of arbitrators (and) those of the Merit Systems Protection Board." S. Rep. 95-969, supra, at 111. See Devine v. Goodstein, 680 F.2d 243, 246 (D.C. Cir. 1982). /14/ 2. While the court of appeals acknowledged the import of the statutory language and legislative history (see Pet. App. 10a-12a & n.12) and purported to "hold the arbitrator to the (harmful error) rule insofar as he decides the particular instance of the individual grievant" (id. at 11a (footnote omitted) ), /15/ the decision below in fact eviscerates the rule in the context of arbitral proceedings. Under the MSPB's interpretation of the harmful error requirement, a grievant may obtain relief only by demonstrating a procedural error that "prejudice(d) * * * his/her rights) by possibly affecting the agency's conclusion. 5 C.F.R. 1201.56(c)(3). To the extent that the decision below allows "the arbitrator (to) take account of significant violations of the collective bargaining agreement, important to the union, even though the particular grievants may not have been themselves adversely affected" (Pet. App. 12a (emphasis added) ), it simply disregards the statutory language and the MSPB's binding definition of harmful error. Indeed, it is difficult to conceive of what would remain of the harmful error requirement if agency action may be set aside on account of "collective bargaining violations important to the union but not prejudicial to the individual grievant" (Pet. App. 11a). And the court of appeals compounded its error by failing even to place a limit on the type of contractual provision that, if violated, would result in the setting aside of agency action in the absence of prejudice to the individual employee. To the contrary, the court of appeals' opinion suggests that the simple "presence in the contract" of given procedural devices "is evidence of their substantiality and importance to the union and its members" (id. at 14a). /16/ The approach inevitably will frustrate the central purpose of the Act's standard of proof provisions, of which the harmful error rule is a part: that of "streamlin(ing) the processes for dismissing and disciplining federal employees." S. Rep. 95-969, supra, at 2. See id. at 3-4, 9, 19, 51, 54. /17/ Congress expressly directed that agency actions not be reversed on account of "technical procedural oversights" (id. at 54), with the aim of overcoming the "widely held impression * * * that a government employee cannot be fired, regardless of unacceptable conduct" (id. at 9). This streamlining of the employment process, Congress believed, would serve the "public's need to have its business conducted competently" (id. at 3). Here, the arbitrator readily agreed that the grievants -- law enforcement officers who falsified official records and misused government property -- acted in an unacceptable manner and that their actions fully justified removal from federal service. It turns the Act on its head to conclude that its provisions force the government to retain such employees because the Agency committed a concededly non-prejudicial procedural mistake while attempting to serve the public interest by terminating their employment. B. The Court Of Appeals' Approach Runs Counter To Congressional Intent By Encouraging Forum Shopping And Inconsistent Decisions In Adverse Action Proceedings As noted above, Congress went to considerable lengths in the CSRA to assure that arbitrators and the MSPB would apply the same substantive standards in judging chalenges to adverse agency action. It did so expressly "to promote consistency in the resolution of these issues, and to avoid forum shopping." H.R. Rep. 95-1717, supra, at 157. The court of appeals' decision effectively frustrates both of these legislative purposes. Most obviously, the decision below virtually guarantees that forum shopping will occur. Arbitrators and MSPB both may consider challenges to adverse action based upon asserted procedural errors. See Stalkfleet, 6 M.S.P.B. at 537; Giesler, 3 M.S.P.B. at 368. It is within "the discretion of the aggrieved employee" to determine where the challenge will be brought. 5 U.S.C. 7121(e)(1). Yet if an arbitrator, unlike the Board, is free to grant relief to employees who have not been personally prejudiced by asserted agency errors, every rational bargaining unit employee with a claim that the agency violated procedures guaranteed by a collective bargaining agreement will exercise() his option" (ibid.) to choose review through the negotiated grievance procedure. See Pastore, 732 F.2d at 216. This effect can be seen on the facts here: had one of the grievants elected to appeal to the MSPB, his discharge would have been upheld -- even though the other grievant, who engaged in virtually identical misconduct, had been reinstated. This situation will lead to predictable and systematic inconsistencies in the outcomes of adverse action appeals. Indeed, entirely different standards of review will be applied to the two portions of the federal workforce. The 39% of federal employees who are not represented by unions /18/ will be able to challenge adverse agency action on account of a procedural violation only if they can demonstrate that, in the absence of the alleged violation, the agency might have reached a different result. /19/ By contrast, the 61% of federal employees who are bargaining unit members will not be required to make such a showing to have adverse action set aside. These circumstances represent the sort of unfair, disparate treatment of otherwise similarly situated federal employees that Congress wished to forestall in the CSRA. C. A Union May Not Assert Violations Of Its Procedural Rights In The Context Of An Individual Employee's Challenge To Adverse Agency Action The court of appeals itself recognized the significance of the harmful error standard (see Pet. App. 10a-11a) and acknowledged that failure to apply the standard strictly in arbitral proceedings might lead to forum shopping. /20/ The court nevertheless justified its holding in this case by reasoning that "(t)he union is a major (if not the major) party to the arbitration and its proper interests are to be protected, even though the interests of particular grievants may not, alone, call for protection" (Pet. App. 12a (emphasis in original)). But this approach misapprehends the statutorily prescribed nature of a challenge to adverse agency action and distorts the scheme erected by the CSRA. 1. a. In a challenge to adverse agency action, the Act places the focus squarely on the protection of the aggrieved employee. "(T)he thrust of (such an) action," after all, "is the promotion of the rights and interests of the employee." AFGE, Local 1286 v. United States Department of Justice, 738 F.2d 742, 746 (6th Cir. 1984) (footnote omitted). Thus "it is the employee who from the inception of the proceedings determines the procedural avenues to travel" by deciding whether to use the negotiated grievance procedure at all (id. at 745 (emphasis in original), 5 U.S.C. 7121(e)(1)), /21/ and it is the employee -- rather than the union -- who may seek judicial review if an adverse decision on his claim is issued by an arbitrator (Local 1286, 738 F.2d at 745; see 5 U.S.C. 7121(f), 7703(a)(1)). Similarly, the statutorily-prescribed evidentiary standards that govern challenges to adverse agency action require the arbitrator to base his decision on the employee's situation (5 U.S.C. 7701(c) ), and reversal is proper on account of an agency's procedural error only when the "employee or applicant for employment" carries the burden of "show(ing) harmful error in the application of the agency's procedures in arriving at (its) decision" (5 U.S.C. 7701(c)(2) and (A) (emphasis added)). Indeed, if the union disagrees with an employee's decision not to use the negotiated grievance procedure or to dispense with judicial review, it "is without recourse." Local 1286, 738 F.2d at 745. This statutory structure hardly suggests that the arbitrator may focus on the rights of the union, rather than the rights of the employee. This congressional emphasis on the situation of the individual employee points up the flaw in the court of appeals' unprecedented suggestion that the arbitrator properly ordered reinstatement of the grievants to "penaliz(e) the agency" (Pet. App. 14a). "Punishing" the Agency by forcing it to retain employees who concededly deserve to be dismissed necessarily will frustrate Congress's attempts to serve "the public's need to have its business conducted competently." S. Rep. 95-969, supra, at 3. /22/ And it will have a more anomalous effect as well. If the Board finds that an agency error was harmful to an aggrieved employee, it will vitiate the agency action; the agency generally remains free, however, to initiate new proceedings against an employee who has acted improperly. See Ryder v. United States, 585 F.2d 482, 489 (Ct. Cl. 1978). But if the agency has been forced to reinstate the employee as "punishment" for procedural error, the agency presumably will not be free to renew its attempts to remove the employee from the federal workforce. As a result, an employee might profit by having the arbitrator find that the agency committed procedural error harmful to the union, rather than procedural error harmful to the employee himself. Such a state of affairs plainly would be inconsistent with the statutory focus on the evidentiary showing made by the employee. b. At the same time, of course, it is true that the CSRA "recognizes a duality of interest among employees and the Union." Local 1286, 738 F.2d at 745. But the fact that union interests may be implicated when collective bargaining agreement provisions are violated does not justify a departure from the clear congressional intent that agency disciplinary action involving an individual employee be set aside only on account of procedural error that caused harm to the employee. /23/ Instead, the Act effectuates this duality of interest by assigning distinct remedial procedures to employees and to unions. /24/ For example, 5 U.S.C. 7121(b)(3)(A) requires that a union be permitted "in its own behalf * * * to present and process grievances," and 5 U.S.C. 7103(a)(9)(C)(i) defines "grievance" to include "any complaint * * * by any * * * labor organization concerning * * * the effect or interpretation, or a claim of breach, of a collective bargaining agreement." Although, as a practical matter, most grievances filed by a union on its own behalf will likely be intended to remedy violations of the agreement that affect the interests of the union as an institution, the statutory authorization clearly encompasses grievances alleging violation of any type of contractual provision, including the notice and representation requirements involved in this case. As a remedy for the violation of such provisions, the union could request that the arbitrator order the employing agency to "cease and desist" from any further such violations. Cf. Carter v. Kurzejeski, 706 F.2d 835, 843 (8th Cir. 1983). In addition, although the filing of a grievance in the context of the negotiated grievance procedures is the usual means of resolving questions of contract interpretation and breach, where the agency's "interpretation of the negotiated agreement was such that it resulted in a clear and patent breach of the terms of the agreement," the union also possesses the option of filing an unfair labor practice charge with the Federal Labor Relations Authority. Iowa National Guard & National Guard Bureau, 8 F.L.R.A. 500, 510 (1982); see also Food Safety & Quality Service, 7 F.L.R.A. 665, 672-673 (1982). Indeed, that is precisely the course that the Union followed in this case. /25/ Finally, the CSRA establishes different mechanisms for judicial review of arbitral decisions involving the rights of employees and the rights of unions. An employee may appeal an arbitrator's decision in an adverse action proceeding directly to the Federal Circuit. 5 U.S.C. 7121(f), 7703(a)(1); 28 U.S.C. 1295(a)(9). The right of appeal to the Federal Circuit may not be exercised by the union on the employee's behalf, however. And if a union wishes to challenge an arbitrator's decision affecting its institutional rights, it must seek review first from the FLRA (5 U.S.C. 7122(a)) and then in the regional courts of appeals (5 U.S.C. 7123(a)). Furthermore, the union may obtain judicial review in an action that it filed on its own behalf only when the challenged arbitral decision involved an unfair labor practice. 5 U.S.C. 7123(a)(1); see American Federation of Government Employees, Local 1923 v. Federal Labor Relations Authority, 675 F.2d 612 (4th Cir. 1982). This scheme plainly suggests that Congress intended unions to follow their own procedural course in challenging "significant violations of the collective bargaining agreement" (Pet. App. 12a), rather than "bootstrapping" their way into employee challenges to adverse agency action. 2. Using employee adverse action challenges to vindicate a union's procedural rights also runs counter to the congressional purposes that underpin the CSRA. As noted above, Congress required a demonstration of harmful error by the aggrieved employee "to avoid unnecessary reversal of agency action because of technical procedural oversights." S. Rep. 95-969, supra, at 54. Indeed, the Federal Circuit itself has acknowledged that the harmful error standard plays such a significant role in the congressional scheme that an agency and a union may not "exclude the harmful error rule from (a collective bargaining) agreement." Devine v. Brisco, 733 F.2d 867, 872 (Fed. Cir. 1984). But by allowing arbitrators to overturn adverse action whenever the union demonstrates some undefined harm to its institutional interests, the decision below threatens to make the harmful error error rule a dead letter and convert the arbitral process into a "'citadel() of technicality.'" McDonough Power Equipment, Inc. v. Greenwood, No. 82-958 (Jan. 18, 1984), slip op. 5, quoting Kotteakos v. United States, 328 U.S. 750, 759 (1946). At the same time, the court of appeals' scheme will, of course, promote both forum shopping and inconsistent judgments. The provisions noted above (see page 25, supra) demonstrate that Congress already has afforded unions adequate means to protect their own rights. In these circumstances, the court of appeals plainly erred in frustrating Congress's express intent that the harmful error rule be applied rigorously, and that bargaining unit and non-bargaining unit employees be treated similarly, simply to provide another avenue for assuring the vindication of union rights. Cf. Brown v. GSA, 425 U.S. 820 (1976). 3. Finally, the court of appeals apparently concluded that its decision was necessary to make the collective bargaining process meaningful (see Pet. App. 12a). But this conclusion plainly was incorrect; bargained-for rights are hardly made meaningless because non-prejudicial violations of those rights cannot be enforced in individual adverse action proceedings. Thus unions are free to bargain for procedures to govern agency action (5 U.S.C. 7106(b)(2) and (3)), and agencies are obligated to abide by the agreed-upon procedures. If prejudicial violations of the procedures occur, any resulting adverse action will be reversed by the Board or by an arbitrator. And the union as an institution may challenge agency errors by filing either a grievance of its own or an unfair labor practice charge. It is these remedies that give force to Congress's intention to "make the collective-bargaining process a more effective instrument of the public interest." Bureau of Alcohol, Tobacco & Firearms v. Federal Labor Relations Authority, No. 82-779 (Nov. 29, 1983), slip op. 18. See 5 U.S.C. 7701(a)(1). At the same time, however, Congress designed the CSRA "to meet the special requirements and needs of the Government" (5 U.S.C. 7101(b)) by, among other things, "giv(ing) agencies greater ability to remove or discipline expeditiously employees who engage in misconduct, or whose work performance is unacceptable." S. Rep. 95-969, supra, at 51. See pages 19-20, supra. The harmful error rule, if interpreted to permit reversal of adverse agency action only on account of procedural errors that prejudiced the employee, helps to reconcile these interests by "(a)llow(ing) civil servants to be * * * hired and fired more easily, but for the right reasons." S. Rep. 95-969, supra, at 3. This balance -- which was struck by Congress and confirmed by the Board -- gives due consideration to the significant role played by public employee unions, "while carefully preserving the ability of federal managers to maintain 'an effective and efficient Government.'" Bureau of Alcohol, Tobacco & Firearms, slip op. 2, quoting 5 U.S.C. 7101(b). CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. REX E. LEE Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General CHARLES A. ROTHFELD Assistant to the Solicitor General DAVID M. COHEN GEORGE M. BEASLEY, III Attorneys NOVEMBER 1984 /1/ The supervisor was discharged by GSA and the discharge was upheld by the Merit Systems Protection Board (Pet. 3 n.1). /2/ The command post was equipped with tape recording equipment that recorded all radio and telephone conversations held by persons in the center (Pet. App. 24a). /3/ Article XXVII, Section 2, of the collective bargaining agreement between GSA and the grievants' union provides (Pet. App. 3a n.2): The Employer agrees that during formal discussion where interrogation or written or sworn statements are taken from an employee, in connection with a charge that may result in disciplinary action against him, he will have the opportunity to have a representative present. It should be understood that counseling sessions are not formal discussions. /4/ The arbitrator concluded (Pet. App. 33a-34a) that while the statute (5 U.S.C. 7114(a)(2)(B)) guarantees an employee the right to have union representation at an investigative interview only if he requests it, the relevant contractual provision further required that the employee be advised of the right to representation. /5/ The relevant contract section provided (Pet. App. 5a n.4): PROPOSED NOTICE: In the event an employee is issued a notice of proposed disciplinary or adverse action, that employee must be afforded and made aware of all his/her rights. These proposed notices shall be served on the employee(s) within a reasonable period of time (normally 40 calendar days) after the occurrence of the alleged offense or when the alleged offense becomes known to management. As the court of appeals noted (id. at 5a n.5), the arbitrator overstated the delay between the date the Agency first became aware of the grievants' offenses (February 2) and the date on which the notices of proposed removal were issued to them (April 2). The arbitrator erroneously counted the 88-day period between February 2 and May 3, the date on which the grievants responded to the notices of proposed removal, in concluding that the Agency violated the contract provision (id. at 36a-37a). /6/ The arbitrator later issued a supplemental ruling confirming the two-week penalty (Pet. App. 40a-41a). /7/ Petitioner, the Director of the Office of Personnel Management, is entitled to seek review of an arbitration award in the Federal Circuit pursuant to 5 U.S.C. 7703(d) if he "determines, in his discretion, that (an error has been made) * * * in interpreting a civil service law, rule, or regulation affecting personnel management and that the * * * decision will have a substantial impact on a civil service law, rule, regulation, or policy directive." See 28 U.S.C. 1295(a)(9). In this case, the court of appeals granted the petition for review, and the appeal was heard by a five-judge panel. /8/ The court of appeals agreed with petitioner in one respect. It held that the arbitrator lacked authority to mitigate Rogers' penalty below the statutorily imposed minimum of one month's suspension for the unauthorized operation of a government vehicle. 31 U.S.C. 1349(b); Pet. App. 14a-16a. /9/ Indeed, the statute requires the employee to plead "harmfulness" as an affirmative defense. See 5 U.S.C. 7701(c)(2)(A); Parker v. Defense Logistics Agency, 1 M.S.P.B. 489, 492 (1980); see also 5 C.F.R. 1201.56(b)(1). /10/ See also Parker v. Defense Logistics Agency, 1 M.S.P.B. 489, 493 (1980) (citations omitted) ("Unless it is likely that an alleged error affected the result, its occurrence cannot have been prejudicial. Stated another way, the question is whether it was within the range of appreciable probability that the error had a harmful effect upon the outcome before the agency."); Fuiava v. Department of Justice, 3 M.S.P.B. 217, 218 (1980); Davies v. Department of the Navy, 4 M.S.P.B. 83, 85 (1980). /11/ Accord, Battaglia v. Department of Health & Human Services, 5 M.S.P.B. 212, 213 (1981); Geisler v. Department of Transportation, 3 M.S.P.B. 367, 368 (1980), aff'd, 686 F.2d 844 (10th Cir. 1982). /12/ The original Senate version of the bill that became the CSRA explicitly provided (S. Rep. 95-969, supra, at 179, 224 (emphasis added) ) that "(a)n agency action shall be upheld by the Board, the administrative law judge, or the appeals officer unless -- (A) the a-ency's procedures contained error that substantially impaired the rights of the employee." See also id. at 54, 64. Although the language was modified in the legislation as enacted, no substantive change in meaning was noted in the Joint Explanatory Statement of the Committee on Conference, which explained "the effect of the major actions agreed upon by the managers of the two Houses of Congress" (H.R. Rep. 95-1717, supra, at 127). /13/ Section 7121(e)(2) provides that the decision of an arbitrator must be "governed" by 5 U.S.C. 7701(c)(1). That provision sets forth the standard of proof and burden of proof applicable in employee appeals to the MSPB. Section 7701(c)(1) also incorporates by reference the harmful error requirement of 5 U.S.C. 7701(c)(2). These provisions leave little room for doubt that Congress meant the harmful error standard to apply to arbitral decisions (see Devine v. White, 697 F.2d 421, 441 (D.C. Cir 1983)) -- as the court below acknowledged. Pet. App. 11a-12a n.12. See Devine v. Brisco, 733 F.2d 867, 872 (Fed. Cir. 1984). /14/ Thus arbitral decisions must take account of the CSRA's harmful error rule. It is well established that an arbitral award that violates external law is unenforceable in federal court. See W.R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber Workers, No. 81-1314 (May 31, 1983), slip op. 8-9. And because "the specialized competence of arbitrators pertains primarily to the law of the shop, not the law of the land" (Alexander v. Gardner-Denver Co., 415 U.S. 36, 57 (1974)), an arbitrator's interpretation of the harmful error rule of 5 U.S.C. 7701(c)(2) -- unlike the interpretation of the Board -- is entitled to no special deference. /15/ Given the nature of its decision, this statement by the court of appeals is meaningless. In every challenge to adverse action the arbitrator must resolve the particular complaint of the individual grievant; here, the arbitrator resolved the grievants' complaints by barring their removal from government service (Pet. App. 39a). /16/ The Federal Circuit attempted to give substance to its version of the harmful error standard in its subsequent decision in Devine v. Brisco, 733 F.2d 867 (1984). The court of appeals there stated that reversal of adverse agency action is appropriate where "a union can show violations tantamount to harmful error to itself" (id. at 872) -- for example, when the agency's procedural errors "interfered with the union's preparation for hearings and resulted in the filing of additional unfair labor practice charges." Id. at 873. But since the errors addressed in this case and discussed in Brisco did not affect the outcome of an adverse action proceeding, the Brisco standard plainly has no relationship to the harmful error requirement spelled out in 5 U.S.C. 7701(c)(2) and defined in 5 C.F.R. 1201.56(c)(3). Indeed, because the test for reversal that is stated in Brisco (and that Brisco read into the decision in this case (see 733 F.2d at 872-873)) is not tied to whether the asserted error might have affected the outcome of the adverse action proceeding, it presumably requires the arbitrator in every case to make an ad hoc, standardless decision whether the effect of the error on the union was "harmful" in some abstract sense. /17/ See also Stankis v. EPA, 713 F.2d 1181, 1186 (5th Cir. 1983); Weiss v. United States Postal Service, 700 F.2d 754, 758 (1st Cir. 1983); Schramm v. Department of Health & Human Services, 682 F.2d 85, 88 (3d Cir. 1982). /18/ These figures are based on Office of Policy and Communications, OPM, Union Recognition in the Federal Government 30 (1983); OPM, Federal Personnel Manual Bulletin No. 711-89, Attach. 2, at 10 (Dec. 1, 1983). /19/ The Federal Circuit has expressly approved the MSPB's construction of the harmful error rule as applied in proceedings before the Board. See Cheney v. Department of Justice, 720 F.2d 1280, 1285 (1983); Shaw v. United States Postal Service, 697 F.2d 1078, 1080-1081 (1983); Miguel v. Department of the Army, 727 F.2d 1081, 1084-1085 (1984); see also Brewer v. United States Postal Service, 647 F.2d 1093, 1097 (Ct. Cl. 1981), cert. denied, 454 U.S. 1144 (1982). /20/ Thus, the court of appeals noted that "(e)mployees who wish to appeal an agency's decision to discipline or remove them from service may choose arbitration, rather than an appearance before the Merit Systems Protection Board, depending upon the applicability of the 'harmful error' standard in arbitration proceedings" (Pet. App. 8a). But the court made no attempt to reconcile this observation with its holding. /21/ While the union as "exclusive representative" may, pursuant to 5 U.S.C. 7121(b)(3)(C), elect arbitration on behalf of an employee who is challenging adverse action pursuant to 5 U.S.C. 7121(e)(1), under the latter provision it is the employee who in the first instance must "exercise() his option" to use the negotiated grievance procedure. See Local 1286, 738 F.2d at 745. Indeed, so far as a challenge to adverse action is concerned, the employee may, under Section 7121(e)(1), use the grievance procedure to address only those issues that may "be raised * * * under the appellate procedures of section 7701." These issues plainly do not include harm to the union's institutional interests. /22/ This case is a particularly inappropriate one in which to "penalize" the Agency. Neither the arbitrator nor the court of appeals made any suggestion that the Agency intentionally denied the grievants their rights. To the contrary, as the Federal Labor Relations Authority concluded, "the dispute in this case involves differing and arguable interpretations of the contracts' intent and meanings" (Pet. Reply Br. Mem. App. 6a). See note 25, infra; note 4, supra. /23/ Indeed, even in the private sector -- where there is, of course, no statutory "harmful error" rule -- arbitrators frequently refuse to set aside management action on account of technical violations of procedures contained in the collective bargaining agreement "where the employee had not been adversely affected by the failure of management to accomplish total compliance with the requirements." F. Elkouri & E. Elkouri, How Arbitration Works 634 (3d ed. 1973) (footnote omitted). /24/ An employee's pursuit of his remedies would not bar the union from itself challenging an agency's violation of bargained-for procedures. See Department of Air Force, 14 F.L.R.A. 390, 391-392 (1984); Internal Revenue Service, 9 F.L.R.A. 480, 480-481 n.2, 492-493 (1982); United States Air Force, 4 F.L.R.A. 512, 527 (1980). See also Carter v. Kurzejeski, 706 F. 2d 835, 843 n.10 (8th Cir. 1983). /25/ The FLRA declined to issue an unfair labor practice charge based on the Agency's failure to advise the grievants of their right to union representation during interrogation because it concluded that "the dispute in this case involves differing and arguable interpretations of the contracts' intent and meanings, and should therefore appropriately be resolved through the parties' negotiated grievance/arbitration procedures, rather than in the unfair labor practice forum" (Pet. Reply Mem. App. 6a). But the Authority did assume jurisdiction and issued a complaint (see Pet. Reply Mem. App. 7a) in response to another of the challenged Agency actions (involving the Agency's instructions to employees who had been interviewed in connection with the investigation of grievants that they should not discuss the interviews with other persons (see Pet. App. 27a, 30a) ); the complaint ultimately was settled pursuant to the Authority's approval.