How dysfunctional is the federal personnel system? The Department of Veterans Affairs learned the hard way when it attempted to fire an employee who was arrested for and pleaded guilty to possessing and intending to distribute meth. The employee appealed, and a union arbitrator reinstated him.
This is typical. Arbitrators usually overturn dismissals no matter how obviously justified.
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Federal personnel challenges go beyond the civil service system. Federal unions are also a big part of the problem.
The government was not supposed to operate this way. Congress expressly directed agencies not to tolerate misconduct and to fire poor performers. The Civil Service Reform Act of 1978 even made these directives “Merit System Principles.”
But agencies come nowhere close to upholding these principles. Barely a third of federal employees say their agencies remove employees whose performance is persistently poor. Half report poor performers stay on the job and continue to underperform.
Part of the problem is the civil service protections that the CSRA codified. Firing a poor performer takes six months to a year. Dismissed employees can then appeal — the Merit Systems Protection Board reinstates slightly more than a quarter of appellants. These protections make it very difficult to fire problem employees.
However, civil service appeals are only part of the problem. The CSRA also required agencies to bargain collectively with federal unions. Instead of appealing to the MSPB, unions can appeal dismissals before an arbitrator whom the unions help select.
Agencies and unions take turns striking names pulled from a national arbitration roster until one remains. National unions are in arbitration constantly across the government. They see the same names from the national roster frequently recur. They also track how arbitrators rule and strike those who often rule against them. Consequently, arbitrators know they can’t rule against unions too often if they want to get federal arbitration work.
In theory, arbitrators should ignore these incentives. In practice, agencies have long complained that arbitrators bend over backward to avoid ruling against unions.
New analysis by the America First Policy Institute of federal arbitration supports these complaints. Arbitrators reinstate employees in three-fifths of dismissal grievances they hear. The arbitrator who forced the VA to reinstate the employee for meth possession was the rule, not the exception. Arbitrators frequently overturn dismissals.
Union arbitration is why the Customs and Border Protection officer who married an illegal immigrant got his job back — notwithstanding agency rules that prohibit knowingly associating with illegal immigrants. It is why the VA had to reinstate a nurse who obstructed a veteran’s treatment and lied to investigators about it. It is also why the Federal Aviation Administration had to reemploy a safety investigator who accepted an improper gift from an airport official.
Arbitration makes trying to fire unionized federal employees even more difficult than civil service protections do. Supervisors must pour time and energy into navigating the dismissal process. However, if a unionized employee appeals, they frequently get reinstated — usually with over a year of back wages. Agencies cannot appeal these reinstatements. And not only must they cover their own litigation costs, but arbitrators often make them pay the union’s attorney fees, too.
Unsurprisingly, many federal supervisors conclude that dismissing problematic employees is not feasible. Surveys show most lack confidence they could remove subordinates for poor performance or misconduct. And therefore, unacceptable behavior is often allowed to slide.
During the Trump administration, Department of Labor leaders were informed that an employee was sexually harassing someone the department was investigating. The harassment included texting images of his genitals — using his work phone. Political appointees ordered the employee fired immediately. Career staff explained that was impossible — in part because the employee was in the union and the union would defend him. So the department instead put the employee on administrative leave, effectively rewarding his behavior with an indefinite paid vacation.
This is a horrible way to run the government. The Supreme Court may soon need to determine whether this system is constitutional.
Legally, federal employees exercise the president’s power. The Supreme Court has repeatedly endorsed James Madison’s view that the Constitution holds federal employees accountable to the president. That way, “the chain of dependence [will] be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the president, and the president on the community.”
Civil service protections and union grievances make a mockery of this theoretical constitutional order. Most federal employees are no more accountable to the president than to King Charles III. VA employees can get arrested or mistreat veterans and keep their jobs despite their agency’s best efforts to remove them. Federal unions may like this system — but it is not clear it is constitutional.
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James Sherk is the former special assistant to the president for domestic policy on the White House Domestic Policy Council under President Donald Trump. He is the America First Policy Institute’s director of the Center for American Freedom.
