18
Ginsburg, J., concurring in judgment
"pending resolution of an underlying disciplinary grievance"); Arbitration Between USPS and National Assn. of Letter Carriers, AFL-CIO, Case No. D90 N-4D-D 95076768, pp. 19-21 (Mar. 20, 1996) (Sickles, Arb.), Lodging of Respondent 27-29 (although employing agency need not await resolution of prior grievances before ordering an employee's removal, an arbitrator may not take account of prior discipline until the appeals process has yielded a final resolution); Arbitration Between USPS and National Post Office Mail Handlers, Case No. MC-S-0874-D, p. 7 (June 18, 1977) (Fasser, Arb.), Lodging of Respondent 7 ("Until th[e] appeal [of a prior disciplinary action] is finally adjudicated, it has no standing in this proceeding." (emphasis added)). Gregory, having at her own option forgone arbitration proceedings, in which prior discipline could not weigh against her while grievances were underway, is not comfortably situated to complain that the procedure she elected employed a different rule.
Given (1) the Board's reopening regulation, (2) the alternative arbitration forum Gregory might have pursued, (3) the Court's explicit reservation of the question of "the adequacy of Bolling review," ante, at 7, 10, and (4) the apparent, incorrect view of the Federal Circuit that the Postal Service itself could not take account of prior disciplinary action that is the subject of a pending grievance proceeding, see 212 F. 3d 1296, 1299, 1300 (2000),5 I agree that a remand is in order.
5 The petition for certiorari and the brief for petitioner state the question presented as follows: "Whether a federal agency, when disciplining or removing an employee for misconduct pursuant to the Civil Service Reform Act of 1978, 5 U. S. C. § 1101 et seq., may take account of prior disciplinary actions that are the subject of pending grievance proceedings." Pet. for Cert. (I); Brief for Petitioner (I) (emphasis added).
Page: Index Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18Last modified: October 4, 2007