The question is important, because the success rates overall in MSPB and EEOC litigation are pretty poor.
The answer, though, is that some cases simply cannot be won without discovery, which is to say they cannot be won at arbitration.
The problem is that, in my experience, it seems that many federal sector managers believe they have a license to lie to the injury of staff they don’t like. If we take the case to arbitration, we have to search for contradictions between what the manager says on direct examination and what he or she said in the proposal or decision letter.
If we take the case to the EEOC or the MSPB, we have, in addition: the agency’s official response (in MSPB cases), investigative affidavits (in EEOC cases), answers to interrogatories, and depositions. At each step, the average dishonest manager is tempted to simply make up whatever story sounds best at the time, without bothering to check with his or her earlier versions. By the time we get to hearing, we can have the managers tied up in the webs of their own deceit. In addition, in some cases the manager effectively gives up, and at some stage either deliberately or inadvertently commits truth.
There are costs, though. First, it requires either an attorney nor a non-attorney who has been trained in effective discovery techniques. (By the way, few law schools teach this subject, at least as a required course.) It’s not difficult, but it must be learned.
Second, the deposition transcripts have to be paid for.
Third, if the union’s officers and reps haven’t been trained, an attorney has to be hired.
Where could the money for this possibly be found? I mentioned in the previous post that the AFGE locals and councils have about $55 million in their bank accounts. Aggressively litigating every case with a substantial likelihood of success could be easily paid for (leaving aside the prospect of recouping the costs through attorney fee awards).