It may well be that these criteria, based on practical experience in the private sector, reflect concerns addressed in somewhat different terms when government agencies or agents are involved. Thus, 9 U.S.C. § 10 (c), quoted above, appears to focus on provision of what amounts to procedural due process in a given case, while the check against arbitrators' exceeding their powers found in subsection (d) ensures that they not act beyond the realm of discretion afforded, i.e., discriminatorily or without a basis in reason or fact. 28/ Adoption of such standards, cast, however, in slightly different terms more appropriate to the public sector, might provide an effective solution to the problem presented. If constitutionally required, judicial review necessary with regard to employee discharges which have been upheld in the course of administrative appeal or arbitration need have but a very narrow scope, extending no further than to limit constitutionally inadequate procedure or patently arbitrary administrative action. If very limited review is desired, therefore,reference to the established arbitration model would aid courts in applying this more limited standard varying as it does from the 28/ Judicial precedent regarding the scope of review of grievance arbitration awards in the public sector is limited. In Board of Higher Education of City of New York v. United Federal College Teachers, Local 1460, 4 PERB 8230 (N.Y. Sup. Court 1971), the Court denied a motion to vacate an arbitrator's award because the arbitration was not "arbitrary or capricious" and did not give the provisions of the agreement an "irrational" construction. - 41 · more traditional criteria found in the APA and usually imposed. 29/ 29/ Two practical questions raised by the adoption of such a standard should be moted. First, our discussion has focused on the employee's right to judicial review, if any, and not on the question of the scope of review the government may wish on its own behalf. Procedural irregularities will almost certainly benefit the government, not the employee; a patently arbitrary or discriminatory decision will in all probability have a like effect. You may, therefore, wish to limit appeals to those by the employee and provide no appeal on behalf of the government; this matter may be one that would serve as a useful bargaining point for purposes of negotiation. A second issue arises with respect to the forum in which appeal, if any, should be had. While APA-type review on the record may perhaps best be placed in the hands of the Courts of Appeal, thereby avoiding a dual review, first by the district court and then at the circuit level, it may be more appropriate, where a traditional arbitration standard is used, to allow for review at the district court level, see, e.g., 9 U.S.C. § 10, and simply. preclude additional review to the Court of Appeals or allow for such review via a certiorari procedure only. Although a decision without basis in reason or fact could best be discerned from the record alone, as could the existence or absence of substantial procedure defects, factual issues with respect to arbitrator bias may also be raised which could well require de novo findings of fact by the federal judge. The district court is, of course, equipped to serve Such a function while the Court of Appeals is not. Our views, discussed in detail above, may be summarized fairly simply: (1) A panel of arbitrators selected under the procedures now in effect under the collective bargaining agreement governing Postal Service employees is to be preferred over the more traditional ad hoc selection process. (2) Use of arbitration as the sole mechanism for dispute resolution is constitutionally permissible if employees whose claims the union determines should not be advanced to the final stage of the arbitration procedure are afforded an alternative means of appeal. (3) Any arbitration procedure would have to allow presentation and cross-examination of witnesses and at least the scope of inquiry afforded under the current proposal concerning the MSPB; substantive variance from the standards applicable to administrative appeals, such as those regarding grounds for reversal could present equal protection problems. (4) Slight modification of the traditional standard for judicial review with regard to arbitration decisions in the private sector should provide as extensive a right of access to the courts as might be constitutionally required. ́ We have in several instances indicated that a more definitive judgment on the constitutionality of certain aspects of a possible arbitration plan must be reserved until a more concrete proposal is prepared. Should you under such circumstances desire additional advice, we would be willing once again to assist you. Chairman RIBICOFF. The hearing will stand adjourned and t committee will go into executive session. [Whereupon, at 12 noon, the committee recessed, to proceed in executive session.] CIVIL SERVICE REFORM ACT OF 1978 AND FRIDAY, APRIL 7, 1978 U.S. SENATE, COMMITTEE ON GOVERNMENTAL AFFAIRS, The committee met at 10 a.m., pursuant to recess, in room 3302, Dirksen Senate Office Building, Hon. Abraham A. Ribicoff (chairman) presiding. Present: Senators Ribicoff and Percy. Staff members present: Richard A. Wegman, chief counsel and staff director; Paul Hoff, counsel; Claudia T. Ingram, professional staff member; Claude E. Barfield, professional staff member; Paul C. Rosenthal, counsel. Chairman RIBICOFF. The committee will be in order. Our first witness is Mr. David Cohen, president of Common Cause. We welcome you here, Mr. Cohen. You are always a constructive witness and we would like to hear what you have to say. TESTIMONY OF DAVID COHEN, PRESIDENT, COMMON CAUSE, ACCOMPANIED BY ROBERT RODRIGUEZ AND MICHAEL COLE Mr. COHEN. Thank you, Mr. Chairman. We are pleased to be here. With me on my right is Robert Rodriguez, a member of our issue development staff. On my left is Michael Cole, director of our legislative department, and who will be working on the issue of civil service reform. I want to say three quick words about some other subjects that this committee has dealt with: Financial disclosure, S. 555. We are hopeful that the House will pass that bill next week. Then, the week after that, lobby disclosure so that will move first, and then you can pursue that. We will continue to pursue before the Senate Rules Committee the sunset legislation so that it can reach the floor. Mr. Chairman and Senator Percy, we are here basically to support 2640 and Reorganization Plan 2, and we will have some suggestions on how to strengthen it. But for us, the underlying questions behind the whole issue of civil service reform deal with making Government work, with making Government understood, with building the concept of public service. That depends on people and allowing these people to be professionals. We share the view expressed by Dwight Ink, executive director of the personnel management project, who said: Jobs and programs in the Federal Government belong neither to employees nor to managers; they belong to the people. The public has a right to have an effective government which is responsive to their needs as perceived by the President and the Congress, but which at the same time is impartially administered. It is the public which suffers from the system which neither permits managers to manage nor provides employees adequate assurance against political abuse. Valuable resources are lost to the public service by a system increasingly too cumbersome to compete effectively for talent. What we are trying to do here is help build a continuous process that enforces the professionalism that exists in the Federal civil service, but is steadily undermined by present procedures and practices. If John Gardner were here testifying, he would make the point that all the human organizations tend to stagnate, become rigid, and eventually succumb to the infirmities of age, but preventive measures are possible. Organizations can continuously renew themselves. How, then, do we overcome the institutional rigidity and stagnation? How can we achieve institutional vibrancy and liveness? For us, the most important factor is for you to recognize that this is a continuing process. If this committee drafts a bill and issues a report, perfect in pitch and tone, and one that is approved by the Senate, eventually enacted into law, it will nevertheless be outdated in some respects before long. Therefore, it would be wise to think beyond the here and now. Otherwise, the needs of responsive and impartial administration can get out of focus. What you do with this bill should not be viewed as being in the fast lane moving toward Utopia. Constant review must be built in to your recommendations and your own oversight will have to be responsive and persistent and aggressive. I indicated at the start that we basically support the administration's proposal and while in our judgment these proposals are not perfect, and we will have suggestions to strengthen these proposals, we think that the proposals indeed make an important start and the fact that this committee is hearing them promptly is highly important. We are prepared to work hard for these reforms, but we want to state clearly at the outset that our commitment to this reform package is based on preserving the essential safeguards of the Hatch Act. Relaxation of the Hatch Act protections could do irreparable damage to this carefully balanced package. We think it is more important than just merely stating a preference on the part of the administration as to what its priorities are between civil service reform and relaxation of the Hatch Act. From our view, that is not enough. We think the administration to enhance civil service reform ought to withdraw its support for the Hatch Act because if the Hatch Act gets intermingled with this legislation, it will in fact do damage and undermine civil service reform. It was my intention, because this is a new issue, to give most of my statement. What I would like to do, what I hope you feel |