Cornelius v. Nutt

472 U.S. 648, 105 S. Ct. 2882, 86 L. Ed. 2d 515, 1985 U.S. LEXIS 99, 53 U.S.L.W. 4837, 119 L.R.R.M. (BNA) 2905

• Court: Supreme Court of the United States
• Decided: June 24, 1985
• Docket: 83-1673
• Status: Published

Opinions

Justice Blackmun

delivered the opinion of the Court.

Under the Civil Service Reform Act of 1978, Pub. L. 95-454, 92 Stat. 1111, a federal employee may challenge agency disciplinary action by appealing the agency’s decision to the Merit Systems Protection Board (Board). If, however, the employee is a member of a collective-bargaining unit of federal employees, he, in the alternative, may challenge the disciplinary action by pursuing any grievance and arbitration procedure provided by the collective-bargaining agreement. Neither the Board nor the arbitrator may sustain the agency’s decision if the employee “shows harmful error in the application of the agency’s procedures in arriving at such decision.” 5 U. S. C. § 7701(c)(2)(A). The Board has interpreted this statute to require the employee to show error that causes substantial prejudice to his individual rights by possibly affecting the agency’s decision. This case presents the issue whether a different “harmful-error” interpretation should apply in an arbitration, or, to phrase it another way, whether the arbitrator may overturn agency disciplinary action on the basis of a significant violation of the collective-bargaining agreement that is harmful only to the union.

I

The 1978 Act is “a comprehensive revision of the laws governing the rights and obligations of civil servants, [and] contains the first statutory scheme governing labor relations between federal agencies and their employees.” Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U. S. 89, 91 (1983). Among the major purposes of the Act were the “preservation of] the ability of federal managers to maintain ‘an effective and efficient Government,’” ibid., quoting 5 U. S. C. § 7101(b), and the “strengthening of] the position of federal unions and [making] the collective-bargaining process a more effective instrument of the public interest,” 464 U. S., at 107.

To promote the first of these purposes, the Act provides that a federal employee may be removed or otherwise disciplined for unacceptable performance or for misconduct. Specifically, §4303 establishes procedures by which an agency may remove or demote an employee whose performance is unacceptable. In addition, §7512 provides that an agency may take adverse action against an employee, including removal, suspension for more than 14 days, reduction in grade or pay, or a furlough of 30 days or less, for, as § 7513 states, “such cause as will promote the efficiency of the service,” including misconduct. A federal employee subjected to agency disciplinary action taken pursuant to § 4303 or § 7512 may appeal the agency’s decision to the Board. §§ 4303(e), 7513(d), and 7701. The Board must sustain the agency’s decision if it is supported by appropriate evidence. § 7701(c)(1).¹ The agency’s decision may not be sustained, however, if the employee “shows harmful error in the application of the agency’s procedures in arriving at such decision.” § 7701(c)(2)(A).²

To promote the second of these purposes of the Act — “to strengthen the position of federal unions and to make the collective-bargaining process a more effective instrument of the public interest” — the Act requires federal agencies and unions representing agency employees to “negotiate over terms and conditions of employment, unless a bagaining proposal is inconsistent with existing federal law, rule, or regulation.” Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U. S., at 92. Even matters reserved to agency-management discretion, such as discipline, are subject to negotiation concerning the procedures that management officials will observe in exercising their authority. § 7106(b)(2).

The Act also requires any collective-bargaining agreement between a federal agency and a union to provide for a grievance procedure and binding arbitration for the resolution of disputes arising under the agreement. §§ 7121(a) and (b). An employee in a bargaining unit having a negotiated grievance procedure that covers agency disciplinary action taken pursuant to §4303 or §7512 thus may elect to challenge such action by filing a grievance rather than appealing to the Board. § 7121(e)(1). If the employee elects so to proceed, and the union or the agency invokes binding arbitration, see § 7121(b)(3)(C), the arbitrator is to apply the same substantive standards that the Board would apply if the matter had been appealed. See S. Rep. No. 95-969, p. Ill (1978); H. R. Conf. Rep. No. 95-1717, p. 157 (1978). In particular, the Act provides: “In matters covered under sections 4303 and 7512 . . . which have been raised under the negotiated grievance procedure ... , an arbitrator shall be governed by section 7701(c)(1) . . . .” § 7121(e)(2). Section 7701(c)(1) incorporates by reference the provisions of subsection (c)(2), including the harmful-error rule. Thus, the statutory scheme mandates that the harmful-error rule is to apply whether the employee challenges the agency action through the Board or through binding arbitration.³

f — 1 H-1

Thomas Rogers and Robert Wilson,-Jr. (grievants), were employed by General Services Administration (GSA) as Federal Protective Service (FPS) officers at the Federal Center in Denver, Colo. Rogers patrolled property owned or leased by the Federal Government at various locations in the Denver metropolitan area while maintaining contact either by radio or by telephone with the Command Center. Wilson worked as a dispatcher at the Center. Everything spoken over the radio and telephone lines of the Command Center is recorded on tape. This tape constitutes the record of activity at the Center.

On January 7, 1982, Rogers was on patrol in an official Government car. At the request of his shift supervisor, he drove to his home in a nearby suburb, picked up several cans of beer, and delivered the beer to the supervisor at the Center. The supervisor later drank the beer and left the empty cans at the Center when he went off duty. The following day, the supervisor, while off duty, became concerned that the unexplained presence of empty beer cans might lead to the discovery of his drinking beer while on duty. He therefore telephoned Wilson, at the Command Center, and instructed him to alter the tape for the previous day to include a false explanation for the presence of the beer cans. Wilson complied with this request.

Subsequently, an FPS official monitoring the tapes for an unrelated reason noted irregularities in them and concluded that they had been edited. GSA’s Inspector General initiated an investigation. Two special agents went to Rogers’ home and asked him to accompany them to the local police station for a “noncustodial” interrogation. The agents made detailed notes of the interview. Wilson was interviewed in the same manner. Neither was advised that he was entitled to have a union representative present at the interview, and neither requested the presence of a representative.

About a month later, the agents again interviewed the two men separately and asked them to sign affidavits prepared from the agents’ notes of the earlier interviews. The griev-ants made corrections in the proposed affidavits and then, under oath, signed them. In the affidavits, the grievants admitted their participation in the above-described incidents of wrongdoing. As before, the grievants were not advised that they were entitled to have a union representative present, and they did not request representation.

On April 2, 1982, almost three months after the incidents, GSA formally advised, the grievants that it proposed to remove them from federal service. Upon receiving written responses to the charges, GSA informed Wilson that he would be removed on grounds of falsification of records and of attempting to conceal activities of record. Similarly, GSA informed Rogers that he would be removed on grounds of falsification of records, failure to report irregularities, and use of a Government vehicle for a nonofficial purpose.⁴

Both grievants elected to challenge their removal under the grievance and arbitration procedures established by the collective-bargaining agreement between GSA and their union, respondent American Federation of Government Employees. The union then invoked binding arbitration pursuant to § 7121(b)(3)(C). The arbitrator, respondent Nutt, found that the grievants had committed the alleged acts of wrongdoing and that this misconduct normally would justify the penalty of removal from Government service. The arbitrator also found, however, that GSA on its part had committed two procedural errors in violation of provisions of the collective-bargaining agreement. First, GSA had failed to give the grievants an opportunity to have a union representative present during interrogation.⁵ Second, GSA had permitted an unreasonable period of time to elapse between the date it first learned of the misconduct and the date it issued the notices of proposed removal.⁶ The arbitrator concluded that there was no prejudice to the grievants themselves due either to the failure to have a union representative present or to the delay in the issuance of the notices. He found, nevertheless, that the removals were not for just cause “[sjolely because of the Agency’s pervasive failure to comply with the due process requirements of the [collective-bargaining] agreement.” App. to Pet. for Cert. 38a. He therefore reduced the penalties imposed on the grievants from removal to not less than two weeks’ disciplinary suspension without pay. Id., at 39a. In addition, he required that Wilson be placed in a position in which the agency would be protected from his “demonstrated proclivity to tamper with the tape recording system.” Id., at 38a.

Pursuant to §§ 7703(d) and 7121(f), the Director of the Office of Personnel Management sought review of the arbitrator’s decision by the United States Court of Appeals for the Federal Circuit. See 28 U. S. C. § 1295(a)(9). The Director contended that the arbitrator had not properly applied the Act’s harmful-error rule. The Court of Appeals granted the petition for review, and it was heard by a 5-judge panel. The court affirmed the arbitrator’s decision in substantial part. 718 F. 2d 1048 (1983). It held that an arbitrator must apply the harmful-error standard of § 7701(c)(2)(A) in determining whether a grievant is personally prejudiced. The court noted that, in the present case, the arbitrator found that the grievants had not been personally prejudiced. Nevertheless, following whatxit deemed to be the lead of the decision in Devine v. White, 225 U. S. App. D. C. 179, 697 F. 2d 421 (1983),⁷ the Court of Appeals went on to hold that even though the particular grievants may not themselves have been adversely affected, the arbitrator, in making the ultimate award, could take into account significant violations of the collective-bargaining agreement that were important to the union. The court reasoned: “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” (emphasis in original). 718 F. 2d, at 1054. Here, the union and the agency agreed to procedural safeguards concerning representation and notice, and these procedures effectively became union rights. Thus, “[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. § 7701(c)(2)(A) (1982) for the purposes of collective bargaining arbitration in which the union is a proper party.” Id., at 1055. The court concluded that the arbitrator’s reduction of the griev-ants’ penalties was a proper means of “penalizing the agency” for disregarding the procedural protections of the collective-bargaining agreement.⁸ Ibid.

Because of the importance of the issue, we granted certio-rari. 469 U. S. 814 (1984).

M HH l — l

A

The harmful-error rule of 5 U. S. C. § 7701(c)(2)(A) provides that an agency’s decision that is appealable to the Board may not be sustained if the employee “shows harmful error in the application of the agency’s procedures in arriving at such decision.” Petitioner argues that “harmful error” is error that causes substantial prejudice to the rights of the individual employee by possibly affecting the agency’s decision.

The Act does not define the term “harmful error,”⁹ and the legislative history of § 7701(c)(2)(A) is inconclusive.¹⁰ The Act provides, however, that the Board “may prescribe regulations to carry out the purpose of [§ 7701],” the provision in which the harmful-error rule appears. See § 7701(j). Pursuant to this authority, the Board has promulgated a definition of “harmful error”:

“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 CFR § 1201.56(c)(3) (1985).¹¹

The agency’s “procedures” considered by the Board in applying § 7701(c)(2)(A) include not only procedures required by statute, rule, or regulation,¹² but also procedures required by a collective-bargaining agreement between the agency and a union.¹³ Thus, in an appeal of an agency disciplinary decision to the Board, the agency’s failure to follow bargained-for procedures may result in its action’s being overturned, but only if the failure might have affected the result of the agency’s decision to take the disciplinary action against the individual employee. At least insofar as it applies to proceedings before the Board, this interpretation of the harmful-error rule is entitled to substantial deference.¹⁴ See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844 (1984).

Respondents do not dispute the correctness of the Board’s definition of harmful error insofar as it applies to proceedings before the Board. Respondents argue, however, that an arbitral proceeding differs significantly from a Board proceeding, and that a different definition of harmful error should apply in the arbitral context. Respondents point out that an appeal to the Board is taken solely by the employee or applicant for employment, see 5 U. S. C. § 7701(a), and that the union has no statutory role in a Board proceeding. In contrast, according to respondents, the union should be considered to be a major party in an arbitration. The union and the agency negotiate the grievance procedures and the terms of the collective-bargaining agreement establishing the extent of the arbitrator’s authority. The union and the agency possess the exclusive power to invoke the arbitral process, and these parties jointly select an acceptable arbitrator.¹⁵ Thus, according to respondents, while the Board must focus exclusively on the rights of the individual employee, the arbitrator should take a broader view and consider the rights of the union as well. Respondents contend that the Court of Appeals therefore correctly held 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.” 718 F. 2d, at 1054.

We are not persuaded by respondents’ arguments. Congress clearly intended that an arbitrator would apply the same substantive rules as the Board does in reviewing an agency disciplinary decision. Section 7121(e)(2) provides that in matters involving agency discipline “which have been raised under the negotiated grievance procedure ... , an arbitrator shall be governed by section 7701(c)(1) of this title, as applicable.” Section 7701(c)(1) incorporates by reference the harmful-error rule of § 7701(c)(2)(A). The Senate Report explains that, under this provision, “if an employee exercises the option to pursue a matter [involving agency discipline] through the negotiated grievance procedure an arbitrator must apply the same standards in deciding the case as would be applied by an administrative law judge or an appeals officer if the case had been appealed through the appellate procedures of 5 U. S. C. section 7701.” S. Rep. No. 95-969, p. 111 (1978). The version of the bill passed by the House did not contain a similar provision. The Conference Committee noted that, under the Senate provision, “when considering a grievance involving an adverse action otherwise appealable to the [Board] . . . the arbitrator must follow the same rules governing burden of proof and standard of proof that govern adverse actions before the Board.” H. R. Conf. Rep. No. 95-1717, p. 157 (1978). The Conference Committee “adopted the Senate provision in order to promote consistency in the resolution of these issues, and to avoid forum shopping.”¹⁶ Ibid.

Adoption of respondents’ interpretation of the harmful-error rule in the context of an arbitral proceeding would directly contravene this clear congressional intent. An employee who elects to appeal an agency disciplinary decision to the Board must prove that any procedural errors substantially prejudiced his rights by possibly affecting the agency’s decision. Under respondents’ interpretation, however, an employee who elects to use the grievance and arbitration procedures may obtain reversal merely by showing that significant violations of the collective-bargaining agreement, harmful to the union, occurred. In the present case, if the disciplined employees had elected to appeal to the Board, their discharges would have been sustained by the Board under its interpretation of the harmful-error rule. Because, however, they pursued the negotiated grievance and arbitration procedures, they benefited from the different interpretation of the harmful-error rule advocated by respondents and applied by the arbitrator and the Court of Appeals, and their discharges were replaced with brief suspensions. If respondents’ interpretation of the harmful-error rule as applied in the arbitral context were to be sustained, an employee with a claim that the agency violated procedures guaranteed by the collective-bargaining agreement would tend to select the forum — the grievance and arbitration procedures — that treats his claim more favorably. The result would be the very inconsistency and forum shopping that Congress sought to avoid.

B

We, however, do not rest our decision solely on deference to the Board’s interpretation of the harmful-error rule and on the clear congressional intent that an arbitrator apply the same substantive standards as does the Board. Rather, we rest our decision ultimately on the conclusion that we must interpret the harmful-error rule as does the Board if we are “‘to remain faithful to the central congressional purposes underlying the enactment of the CSRA.’” Lindahl v. Office of Personnel Management, 470 U. S. 768, 794 (1985), quoting Devine v. White, 225 U. S. App. D. C., at 183, 697 F. 2d, at 425. As noted above, one of the major purposes of the Act was to “preserv[e] the ability of federal managers to maintain ‘an effective and efficient Government.’” Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U. S., at 92, quoting 5 U. S. C. § 7101(b). In order to achieve this purpose, one of the “central tasks” of the Act was to “[a]llow civil servants to be able to be hired and fired more easily, but for the right reasons.” S. Rep. No. 95-969, p. 4 (1978). In particular, the provisions of § 7701 of the Act, including the harmful-error rule, were intended “to give agencies greater ability to remove or discipline expeditiously employees who engage in misconduct, or whose work performance is unacceptable.” Id., at 51.¹⁷ In the present case, the grievants concededly committed improper acts that justified their removal from the federal service. Although the agency committed procedural errors, those errors do not cast doubt upon the reliability of the agency’s factfinding or decision. We do not believe that Congress intended to force the Government to retain these erring employees solely in order to “penalize the agency” for nonprejudicial procedural mistakes it committed while attempting to carry out the congressional purpose of maintaining an effective and efficient Government.

Respondents argue, however, that penalizing the Government in this manner is necessary in order to enforce the procedures arrived at through collective bargaining, and thus to promote a second major purpose of the Civil Service Reform Act — “to strengthen the position of federal unions and to make the collective-bargaining process a more effective instrument of the public interest.” Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U. S., at 107. Respondents contend that if harmful error must be shown in the sense that an employee’s own case is prejudiced, then the procedures arrived at through collective bargaining really become meaningless. We find this concern overstated. Under any interpretation of the harmful-error rule, unions are free to bargain for procedures to govern agency action, see §§ 7106 (b)(2) and (3), and agencies are obligated to follow the agreed-upon procedures. If the agency violates those procedures with prejudice to the individual employee’s rights, any resulting agency disciplinary decision will be reversed by the Board or by an arbitrator.

Even if the violation is not prejudicial to the individual employee, the union is not without remedy. The Act permit.fi the union to file a grievance on its own behalf. § 7121 (b)(3)(A). The Act broadly defines “grievance” to include “any complaint... by any employee labor organization . . . concerning . . . the effect or interpretation, or a claim of breach, of a collective bargaining agreement.” § 7103(a)(9) (C)(i). This statutory authorization clearly permits the union to file a grievance alleging a violation of the procedural requirements established in the collective-bargaining agreement.¹⁸ The arbitrator can remedy such violation by ordering the agency to “cease and desist” from any further such violation. In addition, if the violation constitutes “a clear and patent breach of the terms of the agreement,” Iowa National Guard and National Guard Bureau, 8 F. L. R. A. 500, 510 (1982), the union may file an unfair labor practice charge with the Federal Labor Relations Authority.¹⁹ See §§7116²⁰ and 7118. Our holding today therefore does not prevent the union from obtaining a binding interpretation of a disputed provision of the collective-bargaining agreement or from enforcing agency compliance with that provision. We hold only that the means of compelling compliance do not include forcing the agency to retain an employee who is reliably determined to be unfit for federal service.

The judgment of the Court of Appeals is reversed.

It is so ordered.

Justice Powell took no part in the decision of this case.

1 Section 7701(c)(1) reads:

“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 ease 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 Section 7701(c)(2) reads:

“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;

“(B) shows that the decision was based on any prohibited personnel practice described in section 2302(b) of this title; or

“(C) shows that the decision was not in accordance with law.”

3 Although § 7121(e)(2) explicitly refers only to § 7701(c)(1), it is clear from the language of the statute and the legislative history, discussed below, that the harmful-error rule of § 7701(c)(2)(A) is incorporated by § 7121(e)(2). See Devine v. White, 225 U. S. App. D. C. 179, 199, 697 F. 2d 421, 441 (1983). See also Devine v. Brisco, 733 F. 2d 867, 872 (CA Fed. 1984). Respondents concede that the harmful-error rule applies to an arbitration as well as to a proceeding before the Board, but they contend that the rule should be interpreted differently in the two contexts.

4 The supervisor involved in the incident also was discharged. His discharge was upheld by the Board.

5 Article XXVII, §2, of the collective-bargaining agreement between GSA and the union provides:

“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.” App. to Pet. for Cert. 22a.

The arbitrator interpreted this provision to require that the employee be advised of the right to representation before being investigated.

6 Article XXVII, §3, of the collective-bargaining agreement, as supplemented, provides in pertinent part:

“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.” App. to Pet. for Cert. 23a.

7 In Devine v. White, the United States Court of Appeals for the District of Columbia Circuit held that some bargained-for procedural rights are, by definition, substantial rights of an employee, and that an agency’s violation of those rights constitutes harmful error requiring reversal of the agency’s decision even absent a showing that the violation might have affected the outcome of the decision. See 225 U. S. App. D. C., at 201, 697 F. 2d, at 443. The Court of Appeals in Devine v. White therefore did not interpret the harmful-error rule to protect the rights of the union, as did the Court of Appeals for the Federal Circuit in the present case. The decision in Devine v. White, however, is inconsistent with our decision today insofar as it dispenses with the requirement that harmful error have some likelihood of affecting the outcome of the agency’s decision.

8 The Court of Appeals, however, did not approve the arbitrator’s reduction of Rogers’ penalty to two weeks’ suspension, since there is a statutorily imposed minimum of one month’s suspension for the unauthorized operation of a Government vehicle. See 31 U. S. C. § 1349(b). It therefore ordered the imposition of a one month’s suspension for Rogers. 718 F. 2d, at 1055-1056.

9 It would be natural, however, to assume that Congress intended the term “harmful error” in § 7701(c)(2)(A) to have the same meaning that it has in the judicial context, that is, error that has some likelihood of affecting the result of the proceeding. See, e. g., United States v. Hasting, 461 U. S. 499, 507-509 (1983); Kotteakos v. United States, 328 U. S. 750, 760-762 (1946).

10 The original Senate version of the bill that became the Civil Service Reform Act of 1978 provided that “agency action shall be upheld by the Board, the administrative law judge, or the appeals officer unless — (A) the agency’s procedures contained error that substantially impaired the rights of the employee.” See S. Rep. No. 95-969, p. 224 (1978); see also id., at 179. The Senate Report explains: “Henceforth, the Board and the courts should only reverse agency actions under the new procedures where the employee’s rights under this title have been substantially prejudiced.” Id., at 51. See also id., at 54, 64. The Senate Report does not refer directly to the application of the harmful-error rule in an arbitration. The Report, however, does state that in “the negotiated grievance procedure an arbitrator must apply the same standards in deciding the case as would be applied ... if the case had been appealed through the appellate procedures of 5 U. S. C. section 7701.” Id., at 111. Thus, it is clear that the Senate version of the harmful-error rule focused on the rights of the employee and did not suggest affirmatively that the Board or an arbitrator could take into account the rights of the union.

The Conference Committee did not adopt the Senate version. Petitioner points out that 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 bodies, H. R. Conf. Rep. No. 95-1717, p. 127 (1978), did not note that any substantive change in meaning was intended by the change in language. We decline, however, to infer congressional intent to adopt the substance of the Senate version solely on the basis of this legislative silence.

11 Similarly, in Parker v. Defense Logistics Agency, 1 M. S. P. B. 489, 493 (1980), the Board explained:

“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.”

See also, e. g., 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).

12 See, e. g., Parker v. Defense Logistics Agency, 1 M. S. P. B., at 492-496.

13 See, e. g., Stalkfleet v. United States Postal Service, 6 M. S. P. B. 536, 537 (1981); Battaglia v. Department of Health and Human Services, 5 M. S. P. B. 212 (1981); Giesler v. Department of Transportation, 3 M. S. P. B. 367, 368-369 (1980), aff’d, 686 F. 2d 844 (CA10 1982).

14 The United States Court of Appeals for the Federal Circuit has approved the Board’s construction of the harmful-error rule as applied in proceedings before the Board. See, e. g., Miguel v. Department of the Army, 727 F. 2d 1081, 1084-1086 (1984); Cheney v. Department of Justice, 720 F. 2d 1280, 1285 (1983); Shaw v. United States Postal Service, 697 F. 2d 1078, 1080-1081 (1983).

15 On the other hand, it is the employee who makes the initial election whether to use the negotiated grievance procedure at all, see 5 U. S. C. § 7121(e)(1), and who elects whether to seek judicial review of the arbitrator’s decision, see §§ 7121(f), 7703(a)(1). Also, by the plain terms of § 7701(c)(2)(A), it is the employee who bears the burden of showing harmful error.

16 In addition, 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 Board,” 6 U. S. C. § 7121(f), expressly “to assure conformity between the decisions of arbitrators with those of the Merit Systems Protection Board.” S. Rep. No. 95-969, p. 111 (1978).

17 See also S. Rep. No. 95-969, p. 52 (1978) (provisions of § 7701 intended “to eliminate unwarranted reversals of agency actions”); id,., at 54 (provisions of § 7701 intended to “avoid unnecessary reversal of agency actions because of technical procedural oversights”).

18 Respondents argue that requiring the union separately to file a grievance and invoke arbitration in order to enforce its own rights would result in duplicative proceedings. There is, however, no reason why, if the union’s institutional grievance and the employee’s individual grievance arise from the same factual situation, the two grievances cannot be consolidated by the arbitrator. The only constraint is that, under the harmful-error rule, the arbitrator may not give the employee a windfall by reversing the agency’s decision to discipline the employee in order to penalize the agency for violating rights of the union, whenever the violation had no effect on the agency’s decision.

19 In the present case, the union did file an unfair labor practice charge with the Authority. It alleged that “on February 4, 1982, agents of the General Services Administration (GSA) patently breached the applicable collective bargaining agreement by failing to advise unit employees during an interrogation of their right to have a Union representative/present.” App. to Reply Memorandum for Petitioner 4a. The Acting Regional Director found that it was not clear whether the collective-bargaining agreement required the agency to advise unit employees being interrogated of their right to union representation. She therefore 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.” Id., at 6a. In a case such as this where the meaning of the contract is unclear, the union need only obtain a favorable construction of the contract and an- appropriate cease- and-desist order by filing a grievance and invoking arbitration. Any subr sequent violation by the agency would then provide a basis for an unfair labor practice charge.

20 Respondents suggest that § 7116(d) precludes the union from filing an unfair labor practice charge when, as in the present case, an employee initiates a grievance procedure or appeal to the Board based on the same factual situation. Section 7116(d) states:

“Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section. Except for matters wherein, under section 7121(e) and (f) of this title, an employee has an option of using the negotiated grievance procedure or an appeals procedure, issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures.”

This section provides only that the same aggrieved party cannot raise identical issues under an appeal or grievance procedure and also as an unfair labor practice. It does not preclude a union in its institutional capacity as an aggrieved party from filing an unfair labor practice charge to enforce its own independent rights merely because an employee has initiated an appeal or grievance procedure, based on the same factual situation, to enforce his individual rights. See Internal Revenue Service, Western Region, 9 F. L. R. A. 480, 480-481, n. 2 (1982); United States Air Force, 4 F. L. R. A. 512, 527 (1980).