Cornelius, Acting Director, Office of Personnel Management v. Nutt

PETITIONER: Cornelius, Acting Director, Office of Personnel Management
LOCATION: We’ll Do Club

DOCKET NO.: 83-1673
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Federal Circuit

CITATION: 472 US 648 (1985)
ARGUED: Jan 07, 1985
DECIDED: Jun 24, 1985

Charles A. Hobbie - on behalf of the respondents
Charles A. Rothfeld - pro hac vice

Facts of the case


Media for Cornelius, Acting Director, Office of Personnel Management v. Nutt

Audio Transcription for Oral Argument - January 07, 1985 in Cornelius, Acting Director, Office of Personnel Management v. Nutt

Warren E. Burger:

We will hear arguments next in Devine against Nutt.

Mr. Rothfeld, I think you may proceed whenever you are ready.

Charles A. Rothfeld:

Mr. Chief Justice, and may it please the Court, this case concerns the federal government's ability to fire or discipline employees who have engaged in serious misconduct.

Under the Civil Service Reform Act of 1978, an employee who is fired or subjected to another form of so-called adverse agency action may challenge that action in one of two ways.

Any employee may seek to have the action set aside by filing an appeal with the Merit System Protection Board.

Alternatively, an employee who belongs to a bargaining unit may invoke the grievance procedures set out in the contract between his union and the agency that employs him.

No matter which of the routes the employees follow, the statute sets out the standards of proof and substantive rules that must control the decision in the case.

One of these statutory standards is the harmful error rule, which provides that an employee may have otherwise justified adverse action against him overturned if he is able to demonstrate harmful error in the agency's application of its procedures in arriving at its decision.

Reversal also is in order if the employee may demonstrate that the agency committed harmful error in the application of a procedural rule set out in the collective bargaining agreement.

The issue here is the application of this harmful error rule to two federal employees who undoubtedly engaged in serious misconduct.

The two were employed by the General Services Administration as officers in the Federal Protective Service when their employer received information that they had falsified law enforcement records to cover up misbehavior and had misused government property.

After conducting an investigation, GSA concluded that the charges had been proved, and it ordered the two employees separated from federal service.

The employees, who were members of a bargaining unit, elected to challenge this action by filing a grievance through the negotiated procedure.

The case went to arbitration.

The arbitrator found that--

William J. Brennan, Jr.:

Excuse me, Mr. Rothfeld.

Do most collective bargaining agreements in the federal service have a grievance procedure that concludes with arbitration.

Charles A. Rothfeld:

--Yes, they are required to provide for arbitration.

William J. Brennan, Jr.:

Do they have a standard form of arbitration clause, or may they differ depending on how the union and the agency negotiate?

Charles A. Rothfeld:

They may differ, Your Honor.

In this case, the arbitrator found that the employees had committed the acts alleged, and that those acts fully justified the separation of the employees from federal service.

The arbitrator also found that GSA had misinterpreted its contract with the employees' union, and that misinterpretation led it to commit two procedural errors during the investigation into the employees' misconduct.

The employees had not been informed that they had a right to request the presence of a union representative when they were interviewed by investigating agents.

And the agency had delayed unnecessarily before informing the employees that they would be fired.

But the arbitrator concluded that these procedural mistakes in no way prejudiced the grievance case, did not affect the course of the agency's investigation, and had no impact on the agency's decision to fire the two employees.

Despite these findings, however, the arbitrator, in order to penalize the agency, ordered it to reinstate the two employees in the Federal Protective Service after they had served a two-week suspension.

The Court of Appeals for the Federal Circuit upheld this decision.

The court accepted the arbitrator's findings that the grievants had committed the acts alleged and that those acts fully warranted their being removed from federal employment.

The court also accepted the arbitrator's finding that the procedural mistakes had no effect on the outcome of the case, and the court acknowledged that the statutory harmful error rule controls arbitral decisions.

But the court went on to conclude that a union may assert its own institutional interests during the course of an individual employee's adverse action challenge, if that challenge is brought through a negotiated grievance procedure.