Devine v. WhiteDevine v. White
- Reporters:
- , , ,
- Before:
- Edwards
Concurring Opinions filed by Senior Circuit Judge LUMBARD and Circuit Judge BORK.
Table of Contents
Page
I. Background__________ 183
A. Introduction________________ 183
B. Factual Background__________ 184
C.. The Arbitral Proceedings _____ 184
Page
II. Discussion ________ 185
A. Timeliness of the Petition for
Review_______________ 187
1. Introduction_____________ 187
2. Reconsideration of Arbitral
Decisions_______________ 188
3. Conclusion______________ 191
B. The Propriety of Judicial Review _________________ 191
1. Introduction_____________ 191
2. Desirability of Limited Judicial Review _____________ 193
3.
C. The “Harmful Error” Standard 199
1. Applicability of the Standard in Arbitral Proceedings____ 199
2. The Meaning of “Harmful Error”_________ 200
III. Conclusion _______ 201
Appendix A
Appendix B
HARRY T. EDWARDS, Circuit Judge:This appeal involves a review of an arbitrator’s decision in an “adverse action” case arising under the Civil Service Reform Act of 1978 (“CSRA” or “Act”).1 The case poses several highly significant issues focused on the propriety of judicial review of arbitrators’ decisions in the federal sector. In particular, and for the first time, this court clearly faces questions concerning the circumstances under which the Director of the Office of Personnel Management (“OPM”) may seek judicial review of an arbitrator’s decision; whether the Director must or may first request “reconsideration” of an arbitrator’s award
To address these questions, we have been required to wade through the statutory maze of the CSRA. In undertaking this task, we have come to realize that the Act is fraught with ambiguities, peppered with provisions that appear at cross purposes, and often lacking any useful legislative history. Despite these hazards, we endeavor here to enforce strictly the literal terms of those provisions of the Act that are unambiguous and internally consistent, and to remain faithful to the central congressional purposes underlying the enactment of the CSRA. Where the terms of the statute are ambiguous and we can find no guidance in the legislative history, we look to the common law of labor arbitration to devine statutory meaning.
I. Background
Exercising the authority conferred on him by the CSRA, the Director of the OPM seeks review of an arbitrator’s decision—issued pursuant to a collectively bargained grievance procedure—setting aside a disciplinary sanction imposed by the Immigration and Naturalization Service (“INS” or “Service”) on one of its agents. Mindful of the considerable threats to the congressionally mandated system of grievance arbitration posed by such petitions for review, we approach with caution the issues raised herein, several of which have never been considered in the courts of appeals. The need to resolve these unsettled interpretative questions tips the balance in favor of reviewing the arbitrator’s decision,2 and we ultimately decide that it cannot stand. For the reasons set forth below, however, we deem inappropriate a simple reinstatement of the INS’s suspension, and we remand the case to the arbitrator for clarification of his decision in accordance with the principles enunciated in this opinion.
The facts relevant to the disposition of this petition for review are uncontroverted. On May 9, 1980, INS agent Noe Lopez, on temporary assignment in Florida to assist in handling the unusual influx of Cuban refugees, was involved in an automobile accident while driving a government vehicle after work under such circumstances that it could “only be concluded that the vehicle was used without authorization and used for purposes other than official business”3 in violation of federal law and agency regulations.4 No citations were issued or charges filed, but Lopez was returned to his permanent duty station in Texas on May 13, 1980. On May 20, eleven days after the accident, an internal INS memorandum reviewing the details of the accident was prepared and sent to the Chief Patrol Agent in Miami, but the matter lay dormant until June 26, when the driver of the vehicle that Lopez hit threatened to sue the INS and informed the Service that he had reported the incident to his Senator.
The day after he received the irate citizen’s letter, the Chief Patrol Agent in Miami forwarded the Service’s investigative report to the Regional Commissioner in Dallas for consideration of possible violations by Lopez. Almost four months later, on October 20, the INS informed Lopez of its intention to suspend him for thirty days without pay for misusing a government vehicle. Lopez responded to this notice on October 29, agreeing with the charges and requesting leniency. The agency’s final decisión—imposing a thirty-day suspension without pay “to promote the efficiency of the service”5—was rendered on November 10, and Lopez was informed of his right to appeal to the Merit Systems Protection Board (“MSPB”) or to request his union to pursue a grievance through the arbitration mechanism established by its collective bargaining agreement.6 He chose the latter alternative.
C. The Arbitral Proceedings
The grievance protesting Lopez’ thirty-day suspension was brought before arbitrator Harold C. White. Although arbitrator White found that Lopez had violated federal law and the INS’s rules and that a one-month suspension was the minimum penalty required by statute,7 the decision that he issued on May 13, 1981 ordered the Service to reverse the suspension because it had neither conducted its investigation nor administered discipline in a timely manner as required by Article 31F(3) of the collective bargaining agreement between the INS and the American Federation of Government Employees (“Union”).8 In reaching this conclusion, arbitrator White first observed that Lopez had been unaware of the INS’s investigation until October 20, 1980, over five months after his accident. The arbitrator then rejected the Service’s explanation—-based on the administrative and operational burdens imposed by the influx of Cuban refugees and the Iranian student crisis—for the delay in processing Lopez’ case.
The OPM’s petition for reconsideration was opposed by the Union,14 and was rejected by arbitrator White on July 8, 1981, on the grounds that (1) it contained materials not presented in the hearing and (2) he had no authority to reconsider because “the submission of the arbitrator’s decision ends the arbitrator’s involvement in the arbitration process.”15 The OPM apparently did not receive notice of this decision until July 17; on August 7, twenty-one days after the OPM learned that its petition for reconsideration had been denied and almost three months after the arbitrator’s reversal of the INS’s disciplinary action, the Director of the OPM petitioned for review by this court.
II. Discussion
Continuing the trend toward the provision of meaningful bargaining rights for public employees,16 Congress included in the CSRA its first codification of arbitration as
In adverse action cases such as this one, the CSRA affords the aggrieved employee a choice of procedures; he must initially and irrevocably decide either to pursue his claim through the negotiated grievance mechanism included in the collective bargaining agreement between his union and his employer or to utilize the statutorily established appellate procedures of the MSPB.
Although
A. Timeliness of the Petition for Review
1. Introduction
By its reference to
Although the command of
We note first that the Senate Report on the CSRA stated that “[t]he Director,
First, the applicability of the thirty-day limit in
2. Reconsideration of Arbitral Decisions
Given our conclusion on time limits, the problem posed by OPM petitions for review of arbitrators’ decisions becomes clear.
We must decide, therefore, whether the OPM is required or permitted to seek reconsideration of arbitrators’ decisions before requesting judicial review and whether the delay inherent in any sort of reconsideration process excuses a failure to file a timely petition for judicial review. We suggested a tentative answer to these questions in Devine v. Goodstein, 669 F.2d 736 (D.C.Cir. 1981) (per curiam), when we noted that “[bjecause the Director did not intervene in the matter when it was before the arbitrator, he petitioned the arbitrator for reconsideration as required by
Our answers to these critical questions concerning the reviewability of arbitrators’ decisions should turn, to the extent possible, on the language of
First, petitions for reconsideration of arbitrators’ decisions are inconsistent with the overall statutory scheme established by the CSRA. In the case of appeals by aggrieved employees to the MSPB, the role of the OPM is well defined. If “the interpretation or application of any civil service law, rule, or regulation, under the jurisdiction of the [OPM] is at issue” and the Director believes “that an erroneous decision would have a substantial impact” on any law, rule, or regulation under the OPM’s jurisdiction, “the Director may as a matter of right intervene or otherwise participate in that proceeding before the [MSPB].”43 If the
Second, we believe that had Congress considered the matter it would have found that its assessment of the costs and benefits of OPM participation—either by intervention or petition for reconsideration—in the MSPB decision-making process does not hold true in the case of arbitration. Even if it had ignored the effect of OPM participation on the speed and simplicity of negotiated dispute resolution mechanisms, Congress no doubt would have recognized that third party intervention is inimical to the very nature of the arbitral process. Although the participation of various interested persons and agencies in the administrative process is routine, imposing that aspect of the administrative model on arbitration would undermine several of the latter system’s fundamental characteristics. Most obviously, OPM intervention is inconsistent with the informality that has traditionally typified arbitral proceedings.48 Unless authorized by the parties, moreover, such intervention would disrupt arbitration’s role as a bargained-for “part of a system of self-government created by and confined to the parties,”49 and threaten to reduce both its therapeutic value50 and its ability to resolve disputes in a manner that preserves the ongoing relationships of the involved parties.51 These consequences, we believe, could not have been intended by Congress
Third, nothing in the legislative history of the CSRA suggests that Congress intended to alter the common law concerning arbitrators’ authority to reconsider their decisions.52 “The cases are unanimous in supporting [the] principle” that “[w]hen the final award has been rendered ... all power of the arbitrators is exhausted, and any further action that they take will be utterly void unless the parties confer new authority upon them.”53 And since a request for reconsideration by only one of the parties has no effect, see Code of Professional Responsibility for Arbitrators of Labor-Management Disputes, Rule 6(D),54 a request by a nonparty such as the OPM would be a useless act, particularly when, as here, the request is opposed by one of the parties to the collective bargaining agreement.55 Arbitrators’ traditional unwillingness and inability to countenance petitions for reconsideration, moreover, are based on sound policy factors, for reconsideration “would often cause great inconvenience and added expense, and ... would defeat one of the chief purposes of arbitration, which is to provide for speedy settlement of disputes.” 56 It would thus be unreasonable to infer that Congress intended either to authorize arbitrators to reconsider their decisions or to delay the appellate process to accommodate the filing of meaningless petitions for reconsideration by the OPM.
3. Conclusion
For the foregoing reasons, we conclude that the OPM is neither required nor permitted to seek reconsideration of arbitrators’ decisions before requesting judicial review. Such petitions are inconsistent with the structure of the CSRA and with fundamental characteristics of the arbitral process. Therefore, the filing of a petition for reconsideration will not hereafter justify a failure by the OPM to comply with the thirty-day deadline imposed by
B. The Propriety of Judicial Review
1. Introduction
The Director of the OPM seeks review of arbitrator White’s decision under
Although the OPM must initially make this determination, its conclusion is not binding on the court. We are, of course, cognizant of the general judicial practice of “deferring] to the agency’s understanding of the statute which it administers,” 59 and we believe that this practice constitutes a sound approach to statutory construction under many circumstances. Its application here, however, would frustrate the policies animating
In the one previous case that has presented this issue, Devine v. Goodstein, 680 F.2d 243 (D.C.Cir.1982) (per curiam), we agreed with the OPM that an arbitrator’s clearly erroneous application of self-incrimination, double jeopardy, and equal protection principles would have had a substantial impact on civil service law. But the CSRA contemplates that this determination will be made on a case-by-case basis, and the Goodstein court’s opinion provides little guidance concerning the factors that should influence a court’s decision. In assessing whether the OPM has made a sufficient showing to justify a review of arbitrator White’s decision, we believe it appropriate to balance the need for review against the traditional policy of deference to arbitrators’ decisions. Congress clearly intended to protect federal employees’ due process rights,61 and thus conferred on aggrieved
2. Desirability of Limited Judicial Review
At this late date, “the federal policy favoring arbitration of labor disputes,”64 enunciated by the Supreme Court in Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 923, 1 L.Ed.2d 972 (1957), and the Steelworkers Trilogy,65 is so well established as to need little defense. It has long been recognized that arbitration of such disputes is faster, cheaper, less formal, more responsive to industrial needs, and more conducive to the preservation of ongoing employment relations than is litigation;66 that arbitration is perceived to produce results that are qualitatively superior to the results achieved through litigation in comparable personnel and labor relations matters;67 and that the overwhelming majority of union and management officials prefer arbitration over resort to the courts.68 Although some of these advantages have been called into question as the costs and delays associated with arbitration have mounted in recent years,69 no one seriously doubts that in-court litigation time in comparable case‘s is much longer than the time required to arbitrate a dispute, and no evidence need be cited to make the point that full-blown litigation, including discovery and appeals, is significantly more expensive than arbitration.70 “[E]ven when it functions at its best,” there is good reason to believe that litigation is less desirable than arbitration as a means of resolving most of the typical disputes arising out of the employer-employee relationship.71
The advantages of arbitration over litigation in personnel cases are attributable less to the characteristics of labor arbitrators than to the characteristics of the arbitration process. A principal characteristic of the common law of labor arbitration in the United States is judicial deference to arbitral decisions. Although some measure
[i]n order to facilitate national labor goals, the arbitration result must be final and binding. Disputes should be conclusively resolved privately. Protracted litigation acts as an irritant in the industrial relationship and runs counter, to the parties’ own voluntary commitment to have an arbitrator, and not a court, decide the substance of the dispute. Plenary review of merit determinations would destroy finality.73
The impact of such a loss of finality on the speed and expense of arbitration74 needs no further elucidation, but a more subtle consequence of extensive judicial review may change the nature of the arbitral process to an even greater extent.
If arbitration becomes simply another level of decision making, subject to judicial review on the merits, arbitrators may begin to decide cases and write opinions in such a way as to insulate their awards against judicial reversal75—producing opinions that parrot the appropriate statutory standards in conclusory terms, but suffer from a lack of reasoned analysis. Such a shift from the arbitral model, in which decision makers are free to focus solely on the case before them rather than on the case as it might appear to an appellate court, to the administrative model, in which decision makers are often concerned primarily with building a record for review, would substantially undercut the ability of arbitrators successfully to resolve disputes arising out of the employment relationship.
As a result, arbitrators’ awards in the private sector are generally regarded as binding on the parties to the dispute, and judicial review is extremely limited. United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960), in which the Supreme Court embraced the common law tradition of deference to arbitral determinations,76 constitutes the most influential statement of this position.77 Although it cautioned that arbitrators are not authorized simply to dispense their “own brand of industrial justice,” id. at 597, 80 S.Ct. at 1361, the Enterprise Wheel Court asserted unequivocally that any award that “draws its essence from the collective bargaining agreement,” id., is entitled to judicial acceptance. Courts should vacate an arbitrator’s award only when “the arbitrator’s words manifest an infidelity to this obligation.” Id.78 Although Enterprise Wheel occasionally has been given questionable readings by the courts,79 deference continues to be the most distinguishing characteristic of judicial review of arbitral decisions rendered under private sector collective bargaining agreements
The private sector’s tradition of deference, however, has not yet been fully incorporated into the federal system.81 Although Congress intended that arbitration in the federal sector reflect the private sector model in many important aspects,82 several differences remain that arguably justify less deference to arbitration under the CSRA. First, the so-called management rights of federal employers may deserve greater protection than the management rights of private employers because of a variety of constitutional, political, and economic reasons.83 But this argument, at its core, is addressed to the propriety and scope of collective bargaining itself more than to the amount of deference due arbitral decisions, and Congress has already made the determination that the advantages of collective bargaining in the federal sector outweigh its disadvantages.84 Management rights, moreover, are adequately protected by other sections of the CSRA;85 limiting the deference due arbitrators’ decisions is not necessary to ensure that these rights are respected. Finally, Congress’ failure to accord affected agencies a right to appeal and the extremely limited right of appeal afforded the OPM suggest that Congress did not consider in-depth review of arbitrators’ decisions essential to the protection of management rights.
Second, to the extent that arbitration deserves deference because of its role as part of a system of industrial self-government,86 closer scrutiny might be justified in the federal sector because grievance procedures are statutorily mandated, whereas in the private sector grievance procedures are
Third, the standard of review should arguably be broadened to take account of the nontraditional roles performed by arbitrators in the federal sector. The role of “external law”—laws, rules, and regulations not specifically incorporated in the collective bargaining agreement—in private sector arbitration has been hotly debated,92 but is clearly limited.93 In the federal sector, however, arbitration is intended not only to ensure compliance with collective bargaining agreements, but also “to review or police compliance with controlling laws, rules, and regulations by federal agency employers and employees alike.”94 When a grievance implicates the second of these roles, it is not clear that all of the assumptions underlying Enterprise Wheel’s “essence” test—particularly the notion that arbitrators are better versed in the “law of the shop” and better able to construe collective bargaining agreements than are judges—continue to justify deference to the arbitrator’s decision.95
This argument, of course, provides no support for expanded judicial review when an arbitrator has performed the more traditional role of contract interpretation. We are not persuaded, moreover, that the rules at issue in most CSRA adverse action cases, although created by statute or agency regulations as well as by collective bargaining agreements, are outside the competence
We thus conclude that the possible grounds for treating arbitral decisions in the federal sector less deferentially than private sector decisions cannot withstand careful scrutiny. This does not mean, however, that Congress did not evaluate the relevant considerations differently and intend that courts reviewing arbitrators’ decisions in federal adverse action cases accord those decisions less deference than awards rendered under private collective bargaining agreements. Congress did, after all, provide that almost all “pure grievance”99 cases could be appealed only to the Federal Labor Relations Authority100 and only if the decision is “contrary to any law, rule, or regulation” or otherwise deficient on “grounds similar to those applied by Federal courts in private sector labor-management relations.”101 Because Congress framed the standard of review for adverse action cases in different terms, one could argue that it intended to subject arbitral decisions in such cases to more careful scrutiny.
Appeals by aggrieved employees from decisions of arbitrators or the MSPB in adverse action cases are governed by
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) obtained without procedures required by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.102
The limited nature of this departure becomes clear when we examine the standards governing appeals by the OPM, which can be,implied from the grounds on which that entity may seek judicial review of decisions of the MSPB or arbitrators. It would make nonsense of Congress’ statutory scheme to allow a court considering such an appeal to consider either the sufficiency of the evidence or the arbitrator’s interpretation of the collective bargaining agreement. Only if the court determines that the arbitrator erred as a matter of law in interpreting a civil service law, rule, or regulation 106 can it upset his decision—a standard of review that is at least as deferential as the standard governing review of arbitral decisions in the private sector.
We conclude, therefore, that (1) the policies favoring extremely limited judicial review of arbitrators’ decisions are fully applicable in the federal sector; (2) Congress recognized the advantages of arbitration,107 but effected a limited departure from the private sector’s tradition of deference to ensure that arbitrators’ decisions, like the decisions of the MSPB, adequately protect federal employees’ rights; and (3) courts should promote arbitral resolution of disputes arising out of federal employment by considering OPM petitions for review only when the demonstrated need for review outweighs the damage to arbitration inherent in the appellate process.
3. Application to this Case
When these principles are applied to the petition for review in this case, we believe that the balance tips in favor of exercising jurisdiction. We agree with respondent Lopez that arbitral decisions, such as the one at issue here, may only have limited precedential value;108 we also are sympathetic to his claim that the case involves only “an arbitrator’s interpretation of facts relating to the discipline of one employee under the grievance procedure of a single collective bargaining agreement.”109 But the first argument proves too much, for it suggests that arbitrators’ decisions could never have a substantial impact on the civil service law, and the second is based on a mischaracterization of the OPM’s petition for review.
C. The “Harmful Error” Standard
1. Applicability of the Standard in Arbitral Proceedings
Under the standard of review established by Congress for adverse action cases, the MSPB must sustain an agency decision “supported by a preponderance of the evidence,”
This reading of the provisions is plausible, but we reject it for two reasons. First, although
Arbitrator White did not even purport to apply those standards, and his decision cannot stand. We believe, however, that it would be inappropriate simply to reinstate the INS’s decision without giving the arbitrator an opportunity to determine whether the violation of the collective bargaining agreement’s timely discipline provision constituted “harmful error.”113 Nothing in the record indicates that the INS asked arbitrator White to apply the “harmful error” standard, and no previous case
2. The Meaning of “Harmful Error”
Although the. CSRA does not define “harmful error,” its legislative history makes clear that the reversal of an agency’s decision for procedural error is appropriate only if the procedures followed “substantially prejudiced” the employee’s rights. S.Rep. No. 969, supra note 12, at 51, 1978 U.S.Code Cong. & Ad.News at 2773.114 In many cases, it will be obvious that the agency’s procedural error did do so, but the examples of harmless error that prompted Congress to impose the standard were so frivolous as to provide little guidance in closer cases.115
One interpretation of “harmful error,” based largely on Congress’ desire to reduce the number of reversals of adverse actions,116 has been promulgated by the MSPB. Under the Board’s view, employees can be substantially prejudiced only by errors that, if absent or cured, “might have caused the agency to reach a conclusion different than the one reached.”
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. However stated, the decisive factors are the closeness of the agency’s decision, the centrality of the issue affected by the error, and any steps taken to mitigate the effect of the error.
Id. at 493; see Davies v. Department of the Navy, 4 M.S.P.B. 83, 85 (1980); Fuiava v. Department of Justice, 3 M.S.P.B. 217, 218 (1980).
This interpretation of the CSRA’s “harmful error” standard is consistent with a line of cases in this circuit,117 but it is not the only possible reading of the standard.118 We agree with the MSPB that “the mere theoretical possibility of prejudice cannot suffice as a basis for inferring actual prejudice.” Parker, 1 M.S.P.B. at 493. As a result, we would not hold that delay in
In reaching this conclusion, we begin with a brief look at the nature of a collective bargaining agreement, which is both a contract between the parties and “a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate.” United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 1350, 4 L.Ed.2d 1409 (1960). Like any contract, a collective bargaining agreement may include boilerplate provisions that do not create substantial rights for either labor or management. But the inclusion of a valuable procedural safeguard, such as a requirement that discipline be administered in a timely manner, can constitute persuasive evidence that the employees attached considerable importance to it. As do courts considering the amount of compensation necessary to give a party the benefit of his breached contract, we should give effect to the parties’ assessment of the substantiality of a bargained-for procedural right.120
This is particularly true in the federal sector, where employees are limited to bargaining over procedural matters that do not prevent an agency from exercising its reserved management rights.121 Within the areas in which bargaining is permissible, we believe, as did Congress, that government managers are competent to look out for the government’s interests. See Department of Defense, Army-Air Force Exchange Service v. FLRA, 659 F.2d 1140, 1157 (D.C.Cir.1981), cert. denied, 455 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982). Eroding the safeguards that these managers concede to employees in the collective bargaining process by applying the MSPB’s monolithic “harmful error” standard would thus be inconsistent with Congress’ desire to ensure that the federal government, as well as the private sector, received the benefits that flow from collective bargaining.122 Unless a collective bargaining agreement expressly provides that violations of its procedural provisions require reversal only if the error could have affected the decision, therefore, arbitrators are free to interpret those provisions as creating substantial rights of employees, the violation of which requires reversal of a decision even absent a showing that “the error had a harmful effect upon the outcome before the agency.” Parker, 1 M.S. P.B. at 493.
III. Conclusion
For the reasons set forth above, we hold that arbitrator White’s decision must be set aside, and the record remanded to him for further proceedings in accordance with this opinion. On remand, the arbitrator must, within sixty days, determine (1) whether
So ordered.
APPENDIX A
APPENDIX B
PURE GRIEVANCE *
LUMBARD, Senior Circuit Judge, concurring:
I concur in the judgment and join Parts I, II.A, II.C., and III. Concerning Part II.B. regarding the appropriateness of appellate review of the arbitrator’s decision, I believe it suffices to note, first, that
As the majority opinion explains, Congress has simultaneously tried to provide federal employees with meaningful collective bargaining opportunities respecting disciplinary procedures and has also tried to limit Merit Systems Protection Board review of agency disciplinary actions by imposing a “harmful error” requirement. Though this case involved the review of an arbitrator’s award, it is agreed that the same standards are to be applied by arbitrators and the MSPB. Thus, we have a case in which Congress’ intentions as to collective bargaining and use of the harmful error standard conflict. If we hold that the employee must always show harmful error in the sense that his own case is prejudiced, then the procedures arrived at through collective bargaining become meaningless. If, on the other hand, we hold that violation of bargained procedures is itself harmful error, the statutory requirement of harmful error is, if not overridden, at least substantially diminished in importance. Congress has provided no clear guidance as to how to resolve this dilemma. With the law in this unhappy posture, the intermediate result reached by the majority—that violation of a clear provision of the collective bargaining agreement may in some circumstances constitute harmful error—is at least as sensible as the alternatives. Failing further clarification by Congress, I would add only that, in my view, the MSPB, when and if it is confronted with a case where bargained procedures are violated, remains free to adopt its own definition of harmful error. This definition would presumably be subject to judicial review under the customary deferential standard accorded MSPB decisions.
Notes
. Pub.L. No. 95—454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C. (Supp.V 1981)); see
. See
. Arbitrator’s Decision 6, reprinted in Joint Appendix (“Jt.App.”) 46, 52.
. See
Any officer or employee of the Government who willfully uses or authorizes the use of any Government-owned passenger motor vehicle ... for other than official purposes .. . shall be suspended from duty by the head of the department concerned, without compensation, for not less than one month, and shall be suspended for a longer period or summarily removed from office if circumstances warrant.
. Jt.App. 44. See Hoska v. United States Dep’t of the Army, 677 F.2d 131, 136-38 (D.C.Cir. 1982);
. See
. See
. Article 31F(3) requires “[t]he Employer ... [to] furnish employees with notices of proposed disciplinary actions at the earliest practicable date after the alleged offense has been committed and made known to the Employer.” Brief for Respondent, App. B.
. Petition of the United States Office of Personnel Management for Reconsideration of the Arbitrator’s Decision, reprinted in Jt.App. 55, 55.
.
. This argument, which the OPM continues to press on this appeal, is meritless. It is true that both the duty to bargain and negotiated agreements in the federal sector are subject to applicable laws, see
.
.
. Jt.App. 64.
. Jt.App. 67.
. See generally Schneider, Public-Sector Labor Legislation—An Evolutionary Analysis, in Public-Sector Bargaining 191 (B. Aaron, J. Grodin & J. Stem eds. 1979) (summarizing developments in public sector labor legislation). Although important differences persist between the treatment of employees in the private sector and government employees—most notably the prohibition of strikes by public employees, see Professional Air Traffic Controllers Org. v. FLRA, 685 F.2d 547, 550-51 & nn. 1-3 (D.C.Cir. 1982) (summarizing federal strike prohibitions);
. Kagel, Grievance Arbitration in the Federal Service: Still Hardly Final and Binding?, in Arbitration Issues for the 1980s, Proceedings of the 34th Annual Meeting, National Academy of Arbitrators 178, 179 (J. Stern & B. Dennis eds. 1982). For brief reviews of the history of grievance arbitration in the federal sector, see Smith & Wood, Title VII of the Civil Service Reform Act of 1978: A “Perfect” Order?, 31 Hastings L.Rev. 855, 856-62 (1980); Comment, Federal Sector Arbitration Under the Civil Service Reform Act of 1978, 17 San Diego L.Rev. 857, 860-63 (1980).
. The “grievances” that are to be resolved under such procedures are defined broadly to include complaints concerning “any matter relating to the employment” of an employee, “the effect or interpretation, or a claim of breach, of a collective bargaining agreement,” or “any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment.”
. Comment, supra note 17, 17 San Diego L.Rev. at 881. We are concerned in this case with only one of the four types of disputes—a removal, demotion, or suspension under
. The employee exercises this option upon filing a timely notice of appeal under the statutory procedure or by tendering a timely written grievance under the provisions of the relevant collective bargaining agreement.
. H.R.Rep. No. 1717, 95th Cong., 2d Sess. 157, reprinted in 1978 U.S. Code Cong. & Ad. News 2860, 2891 (Conference Report) [hereinafter cited as H.R.Rep. No. 1717].
. See
. S.Rep. No. 969, supra note 12, at 111, 1978 U.S. Code Cong. & Ad. News at 2833; see Devine v. Goodstein, 680 F.2d 243, 246 (D.C.Cir. 1982) (per curiam).
. See
. See
. But see Comment, supra note 17, 17 San Diego L.Rev. at 887-88.
Arbitrators’ decisions in cases under
.The limited grounds under which the Director can seek review, moreover, seem substantially unrelated to the standard of review established in
. S.Rep. No. 969, supra note 12, at 64, 1978 U.S.Code Cong. & Ad. News at 2786.
. Id.
. See
. See generally Concerned About Trident v. Schlesinger, 400 F.Supp. 454, 478-79 (D.D.C. 1975), modified sub nom. Concerned About Trident v. Rumsfeld, 555 F.2d 817 (D.C.Cir.1977); Hoskin v. Resor, 324 F.Supp. 271, 277 (D.D.C. 1971) (discussing elements of laches).
. See S.Rep. No. 969, supra note 12, at 9-10, 1978 U.S.Code Cong. & Ad.News at 2731-32; H.R.Rep. No. 1403, 95th Cong., 2d Sess. 7 (1978).
. See S.Rep. No. 969, supra note 12, at 51-52, 55, 62, 1978 U.S.Code Cong. & Ad.News at 2773-74, 2777, 2784.
. Id. at 9-10, 62, 1978 U.S.Code Cong. & Ad. News at 2731-32, 2784.
. See Part II.B.2. infra. On the need for finality in arbitration, see Abrams, The Integrity of-the Arbitral Process, 76 Mich.L.Rev. 231 (1977); Meltzer, Ruminations about Ideology, Law, and Labor Arbitration, in The Arbitrator, the NLRB, and the Courts, Proceedings of the 20th Annual Meeting, National Academy of Arbitrators 1 (D. Jones ed. 1967); Robins, The Presidential Address: Threats to Arbitration, in Arbitration Issues for the 1980s, Proceedings of the 34th Annual Meeting, National Academy of Abitrators 1 (J. Stern & B. Dennis eds. 1982).
. The CSRA provides, for example, no time limits on reconsideration by either an arbitrator or the MSPB.
.
. See Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980).
. See Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 631-32, 93 S.Ct. 2469, 2484, 37 L.Ed.2d 207 (1973); Clark v. Uebersee Finanz-Korp., 332 U.S. 480, 488, 68 S.Ct. 174, 177, 92 L.Ed. 88 (1947).
. See Church of the Holy Trinity v. United States, 143 U.S. 457, 459, 461, 12 S.Ct. 511, 512, 513, 36 L.Ed. 226 (1892).
. See Philbrook v. Glodgett, 421 U.S. 707, 713-14, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525 (1975).
. In the absence of a congressional indication to the contrary, we generally presume that legislation was not intended to change the common law. See Tarlton v. Saxbe, 507 F.2d 1116, 1122 (D.C.Cir. 1974); 2A C. Sands, Statutes and Statutory Construction § 45.12 (4th ed. 1973).
.
.
.
. See text at note 32 supra. One could argue that OPM participation would introduce less delay into the appellate process if the Director took no action until the MSPB had rendered an erroneous decision on the ground that the MSPB will often reach the result desired by the OPM. The nature of the administrative process, however, is such that OPM participation is unlikely substantially to delay MSPB decision making. As a result, petitioning for reconsideration of incorrect decisions is likely to increase the average length of the MSPB appellate process to a greater extent than participation under the circumstances specified in
. See text at notes 48-51 & 56 infra; see also Burnett, The Role of the Courts and Judicial Review, in Labor-Management Relations, Civil Service Reforms, and EEO in the Federal Service 327, 347 (A. Burnett, J. Brodsky & B. McGovern eds. 1980) (OPM Director has no right to intervene in grievance arbitration).
. See Abrams, supra note 35, 76 Mich.L.Rev. at 236-37; Edwards, Labor Arbitration at the Crossroads: The ‘Common Law of the Shop’ v. External Law, 32 Arb.J. 65, 92 (1977); 124 Cong.Rec. 25,722 (1978), reprinted in House Comm, on Post Office and Civil Service, 96th Cong., 1st Sess., 1 Legislative History of the Civil Service Reform Act of 1978, 814—15 (Comm. Print 1979) (remarks of Rep. Ford in floor debate) [hereinafter cited as Legislative History].
. Shulman, Reason, Contract, and Law in Labor Relations, 68 Harv.L.Rev. 999, 1016 (1955); see Feller, The Coming End of Arbitration’s Golden Age, in Arbitration—1976, Proceedings of tgn 29th Annual Meeting, National Academy of Arbitrators 97, 107 (B. Dennis & G. Somers eds. 1976).
. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 50 n. 13, 94 S.Ct. 1011, 1020 n. 13, 39 L.Ed.2d 147 (1974); Aksen, Post-Gardner-Denver Developments in Arbitration Law, in Arbitration—1975, Proceedings of the 28th Annual Meeting, National Academy of Arbitrators 24, 26 (B. Dennis & G. Somers eds. 1976).
. See C. Updegraff, Arbitration and Labor Relations 21-23 (3d ed. 1970); Fletcher, How Others View Us and Vice Versa: Administrative and Judicial Critiques of the Arbitration Process, in Arbitration Issues for the 1980s, Proceedings of the 34th Annual Meeting, National Academy of Arbitrators 218, 228 (J. Stern & B. Dennis eds. 1982); Goldberg, The Mediation of Grievances Under a Collective Bargaining Contract: An Alternative to Arbitration, 77 Nw.U.L.Rev. 270, 272 (1982); Valtin, The Presidential Address: Judicial Review Revisited—The Search For Accommodation Must Continue, in Arbitration —1976, Proceedings of the 29th Annual Meeting, National Academy of Arbitrators 1, 5 (B. Dennis & G. Somers eds. 1976) (decrying third party challenges to arbitral decisions).
. See note 42 supra.
. C. Updegraff, supra note 51, at 282 & n. 19. “The authority and jurisdiction of arbitrators are entirely terminated by the completion and delivery of an award. They have thereafter no power to recall the same, to order a rehearing, to amend, or to ‘interpret’ in such manner as may be regarded as authoritative.” Id. at 116; see Mercury Oil Ref. Co. v. Oil Workers Int’l Union, 187 F.2d 980, 986 (10th Cir.1951) (per curiam); F. Elkouri & E. Elkouri, How Arbitration Works 239-41 (3d ed. 1973).
. See C. Updegraff, supra note 51, at 283. But see Unif. Arbitration Act § 9, 7 U.L.A. 50 (1978) (adopted in 24 states and the District of Columbia; authorizes modification or clarification of award on application of one party). See generally Dilts, Award Clarification: An Ethical Dilemma?, 33 Lab.L.J. 366 (1982) (discussing discrepancy between Code of Professional Responsibility and Uniform Arbitration Act).
. In addition, “the expense of arbitration under the negotiated grievance procedure may be equally shared by the parties or may be shouldered by the losing party, and there may be no provision for the expenses of a reopening by •the Director of OPM who is not a party to the .. . agreement.” Burnett, supra note 47, at 347.
. C. Updegraff, supra note 51, at 282; see Dilts, supra note 54, at 368.
.
. S.Rep. No. 969, supra note 12, at 64, 1978 U.S.Code Cong. & Ad.News at 2786. Cf. id. at 57-58, 1978 U.S.Code Cong. & Ad.News at 2779-80 (discussing “substantial impact” standard for discrimination cases) (“Thus, decisions and orders which propel case law in a new direction, or which raise significant conflicts with the policies or interpretations of the [Equal Employment Opportunity] Commission, may be considered by the Commission. [MSPB] actions in individual cases where the significance of the case is limited to its particular facts—so that the decision .. . does not have general applicability—should not be considered.”).
. NLRB v. Enterprise Ass’n of Steam, Hot Water, Hydraulic Sprinkler, Pneumatic Tube, Ice Machine & General Pipefitters, 429 U.S. 507, 528, 97 S.Ct. 891, 903, 51 L.Ed.2d 1 (1977); see Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); National Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 170 (D.C. Cir.1982); Kyle v. ICC, 609 F.2d 540, 542-43 (D.C.Cir.1979) (per curiam).
. S.Rep. No. 969, supra note 12, at 64, 1978 U.S.Code Cong. & Ad.News at 2786; see Devine v. Goodstein, 680 F.2d 243, 246 & n. 16 (D.C. Cir.1982) (per curiam).
. S.Rep. No. 969, supra note 12, at 40, 1978 U.S.Code Cong. & Ad.News at 2762; see Civil Service Reform Act of 1978 and Reorganization Plan No. 2 of 1978, Hearings on S. 2640, S. 2707, and S. 2830 Before the Senate Comm, on Governmental Affairs, 95th Cong., 2d Sess. 276-90 (1978) (Office of Legal Counsel memorandum) [hereinafter cited as Senate Hearings].
.
. The Office of Legal Counsel suggested, for example, that it might be desirable to foreclose any possibility of review by the Government. Senate Hearings, supra note 61, at 289 n. 29.
. Alexander v. Gardner-Denver Co., 415 U.S. 36, 46, 94 S.Ct. 1011, 1018, 39 L.Ed.2d 147 (1974); Abrams, supra note 35, 76 Mich.L.Rev. at 231.
. United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960).
. See, e.g., C. Updegraff, supra note 51, at 21-23; Edwards, supra note 48, 32 Arb.J. at 92; Fletcher, supra note 51, at 228; Frazier, Labor Arbitration in the Federal Service, 45 Geo.Wash. L.Rev. 712, 712 (1977); Rubin, Arbitration: Toward a Rebirth, in Truth, Lie Detectors, and Other Problems in Labor Arbitration, Proceedings of the 3 1st Annual Meeting, National Academy of Arbitrators 30, 33-36 (J. Stern & B. Dennis eds. 1979).
. Jones & Smith, Management and Labor Appraisals and Criticisms of the Arbitration Process: A Report With Comments, 62 Mich.L.Rev. 1115 (1964); see Fletcher, supra note 51, at 228; Edwards, Refíections of a Judge, and Jones, A Meditation on Labor Arbitration and “His Own Brand of Industrial Justice,” in ProCEEDINGS OF THE 35TH ANNUAL MEETING, NATIONAL Academy of Arbitrators (forthcoming).
. See Jones & Smith, supra note 67.
. See Abrams, The Power Issue in Public Sector Grievance Arbitration, 67 Minn.L.Rev. 261, 280 (1982); Abrams, supra note 35, 76 Mich.L. Rev. at 237-38; Goldberg, supra note 51, 77 Nw.U.L.Rev. at 274-80; Sandver, Blaine & Woyar, Time and Cost Savings Through Expedited Arbitration Procedures, 36 Arb.J., Dec. 1981, at 11, 12.
. See, e.g., Rubin, supra note 66, at 34-35.
. Id. at 35-36; see Fletcher, supra note 51, at 228.
. Meltzer, supra, note 35, at 11-12; see ’ Abrams, supra note 35, 76 Mich.L.Rev. at 259-62; Valtin, supra note 51, at 3.
. Abrams, supra note 35, 76 Mich.L.Rev. at 260 (footnote omitted); see Dunau, Three Problems in Labor Arbitration, 55 VaX.Rev. 427, 427-29 & n. 3 (1969).
. See, e.g., Robins, supra note 35, at 9.
. See Meltzer, supra note 35, at 13-14.
. See, e.g., Cox, Some Lawyers’ Problems in Grievance Arbitration, 40 Minn.L.Rev. 41, 42-52 (1955); Note, Judicial Deference to Arbitral Determinations: Continuing Problems of Power and Finality, 23 U.C.L.A.L.Rev. 936, 950 (1976).
. See Craver, The Judicial Enforcement of Public Sector Grievance Arbitration, 58 Tex.L. Rev. 329, 341—43 (1980); St. Antoine, Judicial Review of Labor Arbitration Awards: A Second Look at Enterprise Wheel and its Progeny, 75 Mich.L.Rev. 1137 (1977).
. In making this determination, moreover, any doubts concerning the propriety of an arbitrator’s decision must be resolved in favor of the decision. Enterprise Wheel, 363 U.S. at 598, 80 S.Ct. at 1361.
. See, Aaron, Judicial Intervention in Labor Arbitration, 20 Stan.L.Rev. 41 (1967); Jones, The Name of the Game Is Decision—Some Reflections on “Arbitrability” and “Authority” in Labor Arbitration, 46 Tex.L.Rev. 865 (1968); Morris, Twenty Years of Trilogy: A Celebration, in Decisional Thinking of Arbitrators and Judges, Proceedings of the 33rd Annual Meeting, National Academy of Arbitrators 331 (J. Stem & B. Dennis eds. 1981).
. See, e.g., Dogherra v. Safeway Stores, Inc., 679 F.2d 1293, 1296-97 (9th Cir.1982); Mobil Oil Corp. v. Independent Oil Workers Union, 679 F.2d 299, 302 (3d Cir.1982); Chicago Cartage Co. v. International Bhd. of Teamsters, 659 F.2d 825, 827 (7th Cir.1981); Bettencourt v. Boston Edison Co., 560 F.2d 1045, 1048-49 (1st Cir.1977). But see Sinicropi, Remedies: Another View of New and Old Problems, in Arbitration Issues for the 1980s, Proceedings of the 34th Annual Meeting, National Academy of Arbitrators 134, 134-35 (J. Stem & B. Dennis eds. 1982).
The grounds for review of arbitrators’ decisions have been summarized generally as follows:
When the arbitrator has demonstrated partiality or has reached conclusions that have no support in the evidentiary record, courts will not uphold the award. Similarly, an award will not be sustained when the arbitrator has deviated grossly from the authority conferred by the bargaining agreement, or has issued an order that is contrary to applicable law or some vital public policy. Nevertheless, a reviewing court’s disagreement with an arbitrator’s conclusions generally will not preclude enforcement of the arbitral decision as long as that decision does draw its essence from the collective contract and has some support in the evidentiary record. Most private sector parties thus recognize that arbitration awards rarely will be nullified.
Craver, supra note 77, 58 TexX.Rev. at 343 (footnotes omitted). See also St. Antoine, supra note 77, 75 MichX.Rev. at 1150-60 (pointing to lack of arbitral jurisdiction or authority, arbitral modifications of the collective bargaining agreement, procedural unfairness or irregularity, a union’s violation of its duty of fair representation, violation of public policy or law, and the availability of independent statutory claims as grounds for nondeference).
. See, e.g., Lodge 2424, Int’l Ass’n of Machinists v. United States, 564 F.2d 66, 71-72 (Ct.Cl. 1977) (pre-CSRA decision).
. See Clarke, Substantial Evidence and Labor Arbitration in the Federal Sector, 31 Lab.L.J. 368 (1980); Kagel, supra note 17, at 196.
. These justifications are summarized in Note, Arbitration Awards in Federal Sector Public Employment: The Compelling Need Standard of Appellate Review, 1977 B.Y.U.XRev. 429, 435-37. See generally Aronin, Collective Bargaining in the Federal Service: A Balanced Approach, 44 Geo.Wash.L.Rev. 576 (1976) (noting economic distinctions between public and private sectors); Grodin, Political Aspects of PubUc Sector Interest Arbitration, 64 Calif.L. Rev. 678 (1976) (finality in interest arbitration might afford unions inordinate political leverage on governmental and social policy); Summers, Public Sector Bargaining: Problems of Governmental Decisionmaking, 44 U.Cin.L.Rev. 669 (1975) (in public employee bargaining, the fundamental issue to be addressed is how the decisions of government should be made); Wellington & Winter, Structuring Collective Bargaining in Public Employment, 79 Yale L.J. 805 (1970) (wide-ranging treatment starting from premise that full collective bargaining would distort political process).
. See
. See, e.g.,
. See Feller, supra note 49, at 107.
. See Burnett, supra note 47, at 344.
. See
. Jones, supra note 67; see Kagel, supra note 17, at 178; Morris, supra note 79, at 372-73; St. Antoine, supra note 77, 75 Mich.L.Rev. at 1140-42.
. Jones, supra note 67; see Morris, supra note 79, at 373.
. Although it may be true that grievance arbitration in the federal sector is not a substitute for the right to strike, see Harkless, Comment, in Arbitration Issues for the 1980s, Proceedings of the 34th Annual Meeting, National Academy of Arbitrators 206, 209 (J. Stern & B. Dennis eds. 1982), we do not believe that arbitrators’ decisions deserve less deference for this reason. Federal employees’ “de facto right to strike ... can be as effective, and thus as threatening, as the legalized right to strike of private sector employees,” Note, supra note 83, 1977 B.Y.U.L. Rev. at 438, and binding arbitration in the federal sector provides, as it does in the private context, “a fair and reasonably expedient alternative to overt economic warfare,” id. But see Wellington & Winter, supra note 83, 79 Yale L.J. at 832-33.
. See, e.g., St. Antoine, supra note 77, 75 Mich. L.Rev. at 1137-38, 1142-44.
. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960); Comment, supra note 17, 17 San Diego L.Rev. at 869.
. F. Elkouri & E. Elkouri, Legal Status of Federal-Sector Arbitration 6-7 (1980); see Gamser, Back-Seat Driving Behind the Back-Seat Driver; Arbitration in the Federal Sector, in Truth, Lie Detectors, and Other Problems in Labor Arbitration, Proceedings of the 31st Annual Meeting, National Academy of Arbitrators 268, 271-72 (J. Stern & B. Dennis eds. 1979); Hayford, The Impact of Law,and Regulation Upon the Remedial Authority of Labor Arbitrators in the Federal Sector, 37 ArbJ., Mar. 1982, at 28, 29.
. See Burnett, supra note 47, at 343 & n. 32.
. These issues may be contrasted with public law issues such as those arising under Title VII of the Civil Rights Act of 1964. See Edwards, supra note 48, 32 Arb.J. at 76-79, 90-91.
. See
. See St. Antoine, supra note 77, 75 Mich.L. Rev. at 1143-44. On the precedential value of arbitral decisions, see text at note 108 infra.
. See note 19 supra. See also “Appendix B.”
. See
.
.
Congress has recently clarified a similar ambiguity concerning the review of decisions of the General Accounting Office’s Personnel Appeals Board, the enabling statute of which is based on the CSRA. Compare
. See
. See notes 76-80 supra.
. See, e.g., S.Rep. No. 969, supra note 12, at 40, 1978 U.S.Code Cong. & Ad.News at 2762; Senate Hearings, supra note 61, at 287-89 (Office of Legal Counsel memorandum).
. See text at notes 57-58 supra.
. See 124 Cong.Rec. 25,722 (1978), reprinted in 1 Legislative History, supra note 48, at 814-15 (remarks of Rep. Ford in floor debate); Sub-comm, on Postal Personnel and Modernization of the House Comm, on Post Office and Civil Service, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, at 1371-72 (Comm. Print 1979) (Federal Personnel Management Project Option Paper).
. See Code of Professional Responsibility for Arbitrators of Labor-Management Disputes, Rule 2(G); F. Elkouri & E. Elkouri, supra note 53, at 365-88; Shulman, supra note 49, 68 Harv.L. Rev. at 1020; Smith & Wood, supra note 17, 31 Hastings L.J. at 870-71.
. Brief for Respondent 19.
. Decisions resting on a preponderance of the evidence also cannot stand if they were “based on any prohibited personnel practice described in section 2302(b)” or were “not in accordance with law.”
. See H.R.Rep. No. 1717, supra note 21, at 157, 1978 U.S.Code Cong. & Ad.News at 2891.
. S.Rep. No. 969, supra note 12, at 111, 1978 U.S.Code Cong. & Ad.News at 2833; see Devine v. Goodstein, 680 F.2d 243, 246 (D.C.Cir.1982) (per curiam).
.It is undisputed that “courts may return an award to the arbitrator for clarification or interpretation where it is ambiguous. However, the mere fact that a court may have power to return an award to an arbitrator for interpretation does not necessarily mean that he may undertake to render an interpretation on his own.” F. Elkouri & E. Elkouri, supra note 53, at 240 (footnotes omitted).
. Id. at 64, 1978 U.S.Code Cong. & Ad.News at 2786 (“[A]gency actions should be reversed because the agency’s procedures were in error only if the procedures followed substantially impaired the rights of the employees.”); see Doyle v. Veterans Admin., 667 F.2d 70, 72 (Ct. Cl. 1981); Brewer v. United States Postal Serv., 647 F.2d 1093, 1097 (Ct.C1.1981), cert. denied, 454 U.S. 1144, 102 S.Ct. 1005, 71 L.Ed.2d 296 (1982).
. The examples provided by the Civil Service Commission of “unimportant procedural matters” were the mistyping of the title of a person’s job, Senate Hearings, supra note 61, at 22 (testimony of Alan Campbell), and a failure— subsequently corrected by the agency—to give an employee 30-days’ notice of a planned employment action, id. at 43 (testimony of Jules Sugarman).
. S.Rep. No. 969, supra note 12, at 55, 1978 U.S.Code Cong. & Ad.News at 2777.
. See, e.g., Doe v. Hampton, 566 F.2d 265, 278 (D.C.Cir.1977); Chrysler Corp. v. FTC, 561 F.2d 357, 362-63 (D.C.Cir.1977).
. Cf. Kotteakos v. United States, 328 U.S. 750, 761, 66 S.Ct. 1239, 1246, 90 L.Ed. 1557 (1946) (“What may be technical for one [judge] is substantial for another; what minor and unimportant in one setting crucial in another.”); 11C. Wright & A. Miller, Federal Practice and Procedure § 2883 (1973) (“[T]here is reason to doubt whether .. . any . .. verbal formulation .. . can avoid the subjectivity that necessarily inheres in determinations [concerning harmless error].”) (footnote omitted).
. See, e.g., Polcover v. Secretary of the Treasury, 477 F.2d 1223, 1232-33 (D.C.Cir.), cert. denied, 414 U.S. 1001, 94 S.Ct. 356, 38 L.Ed.2d 237 (1973); Heffron v. United States, 405 F.2d 1307, 1311 (Ct.C1.1969).
. Cf. J. Calamari & J. Perillo, The Law of Contracts § 232 (1970) (discussing liquidated damages); St. Antoine, supra note 77, 75 Mich. L.Rev. at 1140^42 (confirmation of parties’ agreement is key to judicial deference to arbitral decisions).
. See note 11 supra.
. See
1
2 Any collective bargaining agreement may exclude any matter from the application of the grievance procedures.
3 A grievance not satisfactorily settled under the negotiated grievance procedure shall be subject to binding arbitration, which may be invoked by either the exclusive representative or the agency.
4 In hearing
3 Judicial review of an arbitrator’s award pertaining to
. In this regard, we note that arbitrator White’s observation that “[j]ustice delayed is justice denied,” Jt.App. 53, is not necessarily an empty platitude in this context, see Gregory & Rooney, Grievance Mediation: A Trend in the Cost-Conscious Eighties, 31 Lab.L.J. 502, 505 (1980), and that arbitrators have in the past recognized the importance of requirements similar to the one at issue here, see, e.g., Department of Transp., FAA, Wiley Post Airport & NAATS, 80 Fed.Lab.Rel.Rep. ¶ 2-2020 (1980); Department of Justice, INS, New Orleans & AFGE, Nat’I Council of INS Locals, 80 Fed.Lab.Rel.Rep. ¶ 2-1954 (1980).’ But see Department of ■Defense, Navy, Norfolk Naval Shipyard & MTC, Tidewater Virginia Fed’l Employees, 80 Fed.Lab.Rel.Rep. ¶ 2-1734 (1980).
A grievance that does not involve a reduction in grade or removal for unacceptable performance; a removal, suspension for more than 14 days, reduction in grade or pay, or furlough of 30 days or less; or a complaint of discrimination.
1A negotiated grievance procedure shall ensure an exclusive representative the right, in its own behalf or on behalf of any employee in the unit, to present and process grievances; and it shall ensure an employee the right to present a grievance on the employee’s own behalf, and ensure the exclusive representative the right to be present during the grievance proceeding.
2 Any collective bargaining agreement may exclude any matter from the application of the grievance procedures. If not excluded, the grievance procedure is the sole procedure available to employees in the unit for resolving pure grievances.
3 A grievance not satisfactorily settled under the negotiated grievance procedure shall be subject to binding arbitration, which may be invoked by either the exclusive representative or the agency.
5 Judicial review of a final order of the FLRA involving an arbitrator’s award is only obtainable if the order involves an unfair labor practice under