The National Border Patrol Council
AFGE Local 2455
120 LA (BNA) 1397
J. Mart Mitchell, Arbitrator.
The U.S. Customs & Border Protection (hereinafter referred to as the
Agency or “CBP”) is a bureau of the Department of Homeland Security,
The I.N.S., now CBP, and national Border Patrol
Council are parties to a Collective Bargaining Agreement (the “CBA”) executed
On November 7, 2003, SBPA Taylor completed the Vehicle Accident report and Grievant signed it on November 8, 2003. On November 18, 2003, Deputy Chief Patrol Agent R. Marroquin Jr., (hereinafter, Former DCPA Marroquin) wrote a memorandum to Assistant Chief James St. Hilaire regarding Grievant’s on-duty vehicle damage. On November 24, 2003, PAIC E. Martinez signed a proposed reprimand letter (hereinafter, the proposal letter) for Damage to a Government Vehicle which was to be issued to Grievant.
On or about midnight, December 2, 2003, Sais, Grievant’s immediate supervisor, called him into his office and asked him to sign the proposed reprimand letter showing Grievant’s receipt of notice in the incident. Grievant asked to show the document to a union representative before he signed it. Sais did not give him a copy but told him to talk to a union representative and suggested that individual’s name. Grievant told Sais that the individual was no longer a union representative and no other representative was available. Sais then said he would consult Robbins-his immediate supervisor-and get back to Grievant on what to do.
Around 8:00 a.m. on that same morning, Sais directed Grievant to APAIC Robbins’ office and followed him inside. Robbins explained to Grievant that a union representative would not be needed until after Grievant signed the purported acknowledgement. He told Grievant that signing was not an admission of guilt. Again, Grievant asked for a union representative before he signed. As a result, Robbins told Grievant he was going to give him a direct order and ask him three questions. He asked Grievant if he understood the order, understood the consequences of refusing the direct order, and whether or not Grievant was refusing the direct order. Although Grievant said he was not refusing the order, he persisted as he had throughout the meeting in asserting a right to union representation. Robbins never allowed grievant to step outside and consult a union representative; rather, Robbins directed him to leave his office and Grievant obeyed. Five minutes later, after consulting with his union representative, Grievant returned and offered to sign acknowledging the proposal letter but was denied the opportunity to do.
Thereafter, Sais and Robbins wrote memos to Chief Montoya alleging that the Grievant had refused to follow a direct order. Without going further into unnecessary detail, the upward procedures were followed when on January 20, 2004 Chief Montoya signed a letter terminating the Grievant.
The union invoked arbitration and pursuant to the terms of the Collective Bargaining Agreement the undersigned Arbitrator was selected by the parties and the arbitration proceeded on December 6, 2004 in Laredo, Texas.
The parties stipulated, before the Arbitrator, to the following issue:
Was the removal of Grievant, C__, for just cause and to promote the efficiency of the service? If not what shall the appropriate remedy be?
Position of the Parties
Position of the Agency
The Grievant is charged with insubordination in that he refused to comply with the direct order of supervision to sign for receipt of a proposed letter of reprimand (proposal letter) that he was issued for damage to a government vehicle.
The Agency has proved all three elements to withstand a challenge to an adverse action against an employee, viz. he committed the act for which he is charged, there must exist a nexus between the conduct and the efficiency of the service and that the imposed penalty was reasonable. The Agency contends it has met all three.
The Grievant did negligently damage the government vehicle. As noted, around 5:00 p.m., Grievant was driving behind a compact car when he was called out to assist Border Patrol agents apprehend drugs. Grievant saw the compact car’s brake lights several times. Grievant failed to adjust his speed to accommodate the preceding vehicles’ deceleration and nearly rear-ended the preceding vehicle. As Grievant swerved to avoid colliding with the preceding vehicle, he lost control causing damage to the government vehicle when he collided with a tree.
The damage to the government vehicle included: a broken windshield, a broken driver’s side window, the driver’s side rearview mirror was knocked off of the windshield, and the lower left side of the vehicle was damaged.
The Agency proposed to issue an official letter of reprimand to Grievant to be placed in his file for the damage to a government vehicle. Laredo Sector Border Patrol typically admonishes with reprimand letters for damage to a government vehicle.
When FOS Sais attempted to serve Grievant with the official reprimand letter, Grievant “read through it (the letter),” but refused to sign his name at the bottom of the letter to acknowledge receipt of the letter stating that he “didn’t understand what the paperwork was saying” and refused to sign until he spoke to a union steward.
FOS Sais explained to Grievant that the proposal letter was only the initial advising step in the administration process and that Grievant could have a union steward review the letter once Grievant signed for receipt, the Grievant continued to refuse to sign. Sais then told Grievant that he “would get back to him later” and to continue with his duties.
Several hours later, around 8:00 a.m., Grievant’s second line supervisor, APAIC Robbins again explained to Grievant that his signature was not an admission of guilt, but a means of documenting that he received the proposal. When Grievant continued his refusal and said he wanted to talk to a union steward, Robbins explained to Grievant that he was not entitled to union representation since Grievant was not being questioned about conduct surrounding the proposed letter, nor was it a formal meeting or investigative interview. Robbins gave Grievant several opportunities to comply with the direct order. Each time Robbins asked Grievant if he was refusing the direct order, Grievant replied that he was not refusing the direct order but never affixed his signature.
When it became apparent that Grievant was not going to comply with the direct order, Robbins ordered Grievant to leave his office. Grievant’s refusal to obey Robbins direct order was willful and intentional.
Grievant’s several explanations for his refusal to obey a direct order are not credible:
1. Grievant testified that his failure to comply with Robbins’ direct order was a simple “misunderstanding.” This explanation flies in the face of reason and the testimony of his first and second line supervisors.
2. Grievant’s second excuse focuses on the fact that since the insubordination took place in an office setting rather than in the field he is somehow less culpable. As Former DCPA Marroquin testified, “insubordination is insubordination” regardless of where it takes place.
3. Grievant’s third excuse for refusing to obey the direct order was a momentary lapse in his judgment. From the time FOS Sais spoke with Grievant around midnight, Grievant had approximately eight hours to decide what to do. Grievant claims that the Agency is not fair in calculating his lapse in judgment as eight hours. Grievant says that his lapse in judgment lasted from the time he left Robbins’ office until he returned five minutes later to sign the proposal letter at Sais’ office.
Grievant incorrectly asserts that he did not disobey Robbins’ direct order since he returned to sign the proposed letter at FOS Sais’ office within five minutes after leaving Robbins’ office. Grievant was insubordinate the moment he refused to sign the proposed letter in Robbins’ office.
Grievant’s attempts to minimize his intentional and willful “refusal” to sign into an inadvertent “failure” to sign by a mere five minutes. Regardless of the amount of time involved in Grievant’s “lapse in judgment,” the Agency can not afford to have agents fail to comply with direct orders for any length of time. In proposing Grievant’s penalty, former DCPA Marroquin admitted that he may not have considered the fact that Grievant returned to Robbins’ office to sign the proposal letter within five minutes but that is not material. Agents must comply first and grieve later.
4. Grievant’s fourth explanation for refusing to sign rests solely on Sais’ and Robbins’ actions. Grievant claims that Sais was “wishy-washy” in explaining the proposal letter. Basically, Grievant contends that Sais told Grievant that he could talk to a union steward about the proposal letter and that Sais left “certain impressions” with Grievant that signing the proposal letter was not a “big deal.”
Any misimpression that Sais may have left with Grievant was cleared up by Robbins. Grievant admitted that Robbins’ issued a “clear and direct order” for him to sign. It was not until the hearing that Grievant testified that Robbins held the proposal letter to Robbins’ chest and prevented him from signing it. No one but the Grievant is to blame for his own action in refusing to sign for receipt of the proposed letter.
5. Grievant’s fifth excuse is that he was entitled to Weingarten rights and a union steward when he went into Robbins’ office. Grievant was not asked any questions about the damage to a government vehicle, although it is uncontraverted that Grievant repeatedly requested union representation. However, Grievant’s fight to union representation becomes effective only at the point he is interrogated about the damage to the government vehicle. Since Grievant was not summoned to discuss disciplinary action, his right to union representation was not invoked.
Employees are only entitled to union representation at an investigatory examination when it is reasonably believed that the examination is “likely to result in the imposition of discipline.”(Citing cases)
Insubordination required intent. “Intent is a state of mind.” One logical way to discern whether an employee is refusing to obey a direct order is to ask, “Are you refusing to obey?” This question, in and of itself, is harmless. Supervisor Robbins never went further than this when talking to Grievant. Arguably, Robbins’ discussion would have been an interrogation if he asked Grievant why he was refusing to obey the order or asked Grievant to write a memo as to why he was refusing to obey the direct order without providing Grievant his Weingarten rights.
Former DCPA Marroquin disagreed that Grievant’s returning within five minutes to sign the letter showed Grievant’s potential for rehabilitation. Grievant’s termination promoted the efficiency of the service. Agents cannot determine when and where they will follow a direct order.
Lastly, Grievant was not subjected to disparate disciplinary treatment where two other border patrol agents received far less punishment-disciplinary suspension-for like offenses. And, the fact that Grievant has no past disciplinary record and above average performance appraisals cannot overcome the egregiousness of this one act.
Regardless of how trivial the underlying cause of the insubordination may seem, insubordination is insubordination. A single instance of insubordination can support removal. Since Grievant was properly terminated, the Agency’s decision must be sustained. The efficiency of the Service is best served by upholding Grievant’s termination.
Position of the Grievant
At the outset, the Grievant was not at fault in the accident in question and at most deserved only informal counseling-not a reprimand. The only reason that the accident investigator Taylor thought Grievant was at fault was Grievant’s written statement, indicating that he saw brake lights on the vehicle he was pursuing. The accident investigator assumed Grievant had time to slow and was at fault for not doing so. The writing by Grievant upon which the investigator’s conclusion was based was not definitive as to time. At the hearing, the Grievant gave a reasonable explanation of that writing and why the investigator’s conclusion of fault was wrong. Particularly, the Grievant claimed that the timing was such that the brake lights flashed when he was far away and the vehicle stopped when he got close to it. Since the investigator did not talk to the Grievant after reading the memo, Grievant assumed all was well and expected no disciplinary action.
When on or about midnight, December 2, 2002, Grievant’s immediate supervisor Sais called Grievant into his office to sign a proposed disciplinary action letter, Grievant asked to show the document to a union representative before he signed it. Sais replied the he would consult his supervisor Robbins and get back to him.
In Supervisor Robbins’ office, Grievant throughout urged that he was not refusing to sign the purported acknowledgement and persisted in asserting his right to union representation. However, Robbins never allowed Grievant to step outside and consult a union representative. Instead, Robbins directed him to leave his office and Grievant obeyed. Finally, after consulting with a union representative, Grievant, some five minutes later, returned to sign the proposal but was denied the opportunity to capitulate.
Accordingly, while the Agency originally only proposed a reprimand for the accident, Grievant’s position is that there was no just cause to support even a reprimand.1
Grievant had no prior disciplinary record for the preceding five and one half years he served our country. He always followed orders and it was unusual for a Border Patrol Agent to have never received a letter of reprimand for a vehicular accident, for such reprimands were very common. Additionally, informal counseling was an option never even considered by management. Grievant deserved only an informal counseling at most; and informal counseling would have been as effective and less costly than a reprimand.
Since Grievant had no disciplinary history in his five and one half years of employment, he had no notice or information about the proposal of reprimand, acknowledgement, or what it meant by “Official Reprimand.” He had recently received a notice that seemed to put the legality of Robbins’ position in question (Weingarten Rights). Invariably, the deciding official, Chief Montoya, assumed a fact for which there is no evidence. Namely, the Grievant, as he put it, “had experienced these types of situations in the past by his own colleagues” when in fact, he had no specific knowledge of Grievant or his background to support his belief. Grievant had never been a union steward or involved in any disciplinary matter prior to this incident.
So, also, the direct order was not given in a vacuum. The order was to acknowledge receipt of a document. Those closest to Grievant’s level all agreed that one should exercise caution in signing a document, even under direct order. Supervisor Robbins agreed that he would not sign unless he knew the document to be true, even if given a direct order.
The direct order given to the Grievant upon which insubordination was based was unlawful, unreasonable, arbitrary and capricious. Chief Montoya conceded that had the Grievant not been given a “direct order” he would not have been guilty of insubordination. Further, Chief Montoya in reaching his decision to terminate Grievant apparently did not know or even consider that Grievant had returned in five minutes and wanted to sign.
In a prior arbitration award between the parties (FMCS 99-02689), an arbitrator failed to see any distinction between a direct order and an order. There, the grievant, a Border Patrol officer from Laredo, Texas, had been given a two-day suspension for delay in responding to a direct order to remove batteries from a car. While the award found just cause for the insubordination, the two-day suspension was set aside and reduced to a letter of reprimand because of the totality of circumstances.
Similarly, in an award by Arbitrator Barnett Goodstein dated May 29, 2001-Border Patrol-Laredo, Texas, the grievant was involved in disrespectful yelling at his supervisor that ensued when grievant vocally refused his supervisor’s order to come into the supervisor’s office. The events occurred in front of several of the supervisor’s direct subordinates. It is noteworthy that the grievant was not charged with insubordination but rather with conduct unbecoming. In sustaining the grievance, the arbitrator set aside the five-day suspension and ordered that the grievant be made whole.
Additionally, the direct order given to Grievant violated both the union contract and the Grievant’s Weingarten rights. Article 31-Formal Meetings and Investigations provides:
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B. (1) The services will provide the Union the opportunity to be represented at any examination of an employee in the unit by a representative of the Service if:
a. the employee reasonably believes that the examination may result in disciplinary action against the employee; and
b. the employee requests representation.
(2) The employer will advise employees in the unit of his right annually and will post the annual notice throughout the year on the bulletin boards where notices for employees are normally posted.
Weingarten rights are clearly applicable to Border Patrol Agents such as C__. Department of Justice I.N.S., Border Patrol E1 Paso, Tex. v. Federal Labor Relations Authority, 939 F.2d 1170, 138 L.R.R.M. (BNA) 2532 (5th Cir. 1991).
Weingarten rights are triggered when management begins to investigate accusations against a member of the bargaining unit. Unions are entitled to represent employees in meetings management holds with employees in connection with an investigation.
Three conditions must exist before this entitlement arises:
• One or more management representatives must be examining the bargaining unit employee in connection with an investigation; and
• The employee must reasonably believe that the examination may result in disciplinary action against him/her; and
• A bargaining unit employee must have requested representation by the union. Elkouri & Elkouri: How Arbitration Works, 242-248 (Marvin M. Volz and Edward P. Goggin, eds., 5th ed. 1997).
Since one of the questions Supervisors Robbins and
• Three questions were asked,
• Those questions determined whether the refusal was intentional and thusly whether it was insubordination, and
• That is the issue before the tribunal.
The Grievant was confused as to the meaning of the letter and was not given an explanation.
For “direct order” to exist, understanding is essential. The Supervisor’s Handbook to Discipline in Chapter 7 provide that a supervisor should make the following determinations concerning insubordination:
1. Were instructions (orders) clear and complete so that the employee could understand and follow the directions?
2. Are the instructions proper? An order which requires an employee to do something that is immoral, illegal, unsafe, a violation of regulations, or requiting a feat beyond his/her capabilities is not enforceable.
3. Was the employee’s failure to comply intentional? Employee remarks such as, “You can’t make me do that!” or “Hell, no, I am not going to do that!” show intent to disobey the order. To take action for insubordination, you must be able to answer yes to all three. A formal disciplinary action such as a letter of reprimand or a suspension is appropriate for a first offense of a deliberate refusal to follow an explicit and proper order. (Emphasis Added)
Instead of Robbins asking himself those questions, he started asking them of C__. As is apparent from Marroquin’s testimony he questioned Robbins to be sure C__ had been properly warned. The procedure only required questions because Robbins honestly needed to find out from C__.
How can one understand an order without knowing the consequences of compliance therewith? C__ was ordered to sign a document that references an external procedure that he could not verify without more information. Would an agent be required to follow a direct order to jump into unknown darkness, or would the safety exception apply? Knowledge of consequences is part of the requisite understanding in non-emergency situations.
Placing one’s signature on a document is not a rote exercise and should not be taken lightly. Signing a government document has legal consequences. Acknowledgements have legal effect.
While Supervisors Robbins and
The Agency should have resolved the conflict at the lowest level possible.
The bargaining agreement requires management to resolve the grievances at the lowest possible level. Chapter 4 of The Supervisor’s Guide to Discipline provides as follows:
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6. Have the employee sign the Receipt copy of the notice. Emphasize that the signature does not indicate agreement with the notice’s contents, merely acknowledgment of receipt. If the employee refuses to sign, call in a witness. Write on the receipt copy, “Delivered to (name) on (date). Employee refused to sign. (Your signature) (Witness’s signature) (date/time).”
Lastly, terminating Grievant did not promote the efficiency of the governmental services.
The reasons for the termination of C__ were
based on the evidence communicated only to the Sector Chief, the Assistant
Patrol Agent in charge, the Field Operation Supervisor
by the Sector’s Assistant Chief Patrol Office. Management never disseminated
this information to the public or even to Border Patrol employees in
Even when the termination was imposed, no information about it was sent to any of the Border Patrol Agents. The rationales tendered in testimony for preventing chaos and disorder among the employees are therefore invalid.
There are certainly valid reasons for prohibitory and paramilitary operatives to strictly adhere to lawful orders. In testimony, those involved threats to life and limb, dangerous situations. Other rationales, such as preserving the authority of supervisors, apply equally well to any enterprise.
The problem here is that no such circumstances existed. Grievant was
asked to sign a document. There was no hurry in getting the completed document
established in the record. If there had been,
However the facts are interpreted in this
matter, the punishment was arbitrary and unreasonable. The Attachments show
drastically differing results. The annual notice dated
The Arbitrator should reinstate Grievant with full back pay and benefits, and to direct the Agency to purge its records of the disciplinary action.
Opinion of the Arbitrator
While the Arbitrator has carefully reviewed and scrutinized the voluminous record in this proceeding, he does not deem it necessary to reconcile and/or address all the contradictory arguments and evidence in this case. Instead, the Arbitrator will focus his attention primarily on the evidence and arguments deemed controlling herein. However, the Arbitrator will note that the numerous issues and sub-issues have been fully litigated and dealt with in the excellent and lengthy opposing briefs from both parties as reflected in the rather fulsome “Position of the Parties” as set forth hereinbove.
The essential facts in this case are primarily set forth in the “Background” section above. Hopefully, made even more simple, the Grievant on November 6, 2003 was involved in a single car accident while on duty as a Border Patrol agent in E1 Cenizo, Texas. Grievant reported the accident promptly, and about one hour later, spoke to an investigative officer who had responded to the scene. Later that night, the Grievant signed a form acknowledging that he understood his fights to union representation (Weingarten Rights) and was requested to write a memorandum regarding the damage to the government vehicle. Grievant wrote and signed the memorandum as requested. Thereafter, Grievant signed a completed vehicle accident report prepared by the investigating officer. The matter was processed upward until a proposed reprimand letter was prepared to be issued to Grievant regarding his on-duty vehicle damage. Subsequently, on December 2, 2003, Grievant’s immediate supervisor, Sais, called Grievant into his office and asked him to sign the proposed reprimand letter acknowledging receipt of notice in the incident. Grievant asked to show the document to a union representative before he signed it. (No union representative was available at the time.) Supervisor Sais advised Grievant that he would consult Robbins (his immediate supervisor) and get back to him.
Around 8:00 a.m. of the same day, Sais accompanied the Grievant to Supervisor Robbins’ office where Robbins-at the outset-explained that a union representative would not be needed until Grievant signed the purported acknowledgment of receipt of the reprimand proposal. Robbins advised that signing was not an admission of guilt. Again, Grievant asked for a union representative before he signed it. Whereupon, Robbins told Grievant he was going to give him a direct order. Robbins asked Grievant if he understood the order and understood the consequences of refusing a direct order, and whether Grievant was so refusing. Grievant replied that he was not refusing the direct order and persisted in his request for union representation urging that he did not understand the proposed letter. Robbins did not allow Grievant to step outside and consult a union representative. Rather, Robbins directed Grievant to leave his office and Grievant obeyed. Five minutes later, after consulting with his union representative, Grievant offered to sign as earlier directed but was denied the opportunity to do so.
Thereafter, Sais and Robbins wrote memos to Chief Montoya alleging that the Grievant had refused to follow a direct order. The matter was processed upward through the various channels and on January 20, 2004, Grievant was terminated for insubordination by Chief Montoya.
From the record as a whole and from the Arbitrator’s observation of the Grievant’s testimony at the hearing, it is abundantly clear that the Grievant had grave concern about signing the proposed reprimand letter. While insisting that he was not refusing to sign the proposal, he likewise insisted that he did not understand the letter and wished to have a union representative to review it. Understandably, Robbins was probably annoyed at Grievant’s refusal since according to Grievant Robbins held the letter across his chest evidencing a desire that Grievant not view it. Parenthetically, Grievant had in the processing of this matter earlier affixed his signature to the memorandum narrating his version of the vehicle accident. On November 8, 2003, Grievant signed the vehicle report completed by Investigator Taylor. On November 6, 2003, Grievant signed a form that he understood his rights to union representation (Weingarten). Grievant also wrote and signed a memorandum to PAIC Martinez regarding the on-duty vehicle damage. It thus seems abundantly clear that Grievant had no reluctance to affixing his signature to documents he understood. However, since Grievant in good faith believed he was not in any way at fault in the single car on-duty vehicle accident, credence is given to his reluctance to affix his signature to a proposed reprimand which he did not understand as to its import. And, without regard to his rights under Weingarten vel non, it seems certain from a factual standpoint that Grievant in Robbins’ office on the date in question reasonably believed that he was being brought into disciplinary focus for an incident in which he felt blameless.
We must bear in mind in our consideration herein that Grievant was an agent with five and one-half years of unblemished, above average performance. Grievant had never heretofore even received a reprimand. So also, after the confrontation in Robbins’ office where he obeyed every instruction other than to immediately sign - insisting that he did not understand the proposed reprimand, but was not refusing to sign - he returned to Sais’ office within five minutes and offered to sign as earlier requested.
Whether in the review process upward management even considered Grievant’s five minute delay in evidencing a willingness to obey Robbins’ direct order and sign the proffered document is not revealed in the record. However, Chief Montoya seemed unaware that Grievant had returned within five minutes to affix his signature. On cross-examination, Chief Montoya was reminded that all the testimony in the record was to this effect and was asked to assume that Grievant came back within five minutes and offered to sign the acknowledgment. Chief Montoya replied such return in five minutes would not change anything since Grievant had already refused to comply with a direct order.
To the same effect is former DCPA Marroquin’s testimony who admitted that in proposing Grievant’s penalty he may not have considered Grievant’s return in five minutes to sign the proposal.
Of significant import, Supervisor Robbins under cross examination acknowledged that he would not sign a document if he did not fully understand it and that no border patrol officer should sign any document unless they fully understand it. Robbins when questioned concerning his failure to use an alternative method to effect delivery of a proposed notice to a grievant who refused to sign, viz. “...call in a witness.” Ultimately admitted that he did not know anything about the procedure at the time but noted that the procedure contained in a “hand book” are merely pointers and/or guidelines. Indeed, “The Supervisors Guide to Discipline” provides in pertinent part:
“Have the employee sign the receipt copy of the notice. Emphasize that the signature does not indicate agreement with the notice’s contents, merely acknowledgment of receipt. If the employee refuses to sign, call in a witness. Write on the receipt copy `Delivered to (name) on (date). Employee refused to sign. (Your Signature) (Witness Signature) (date/time).’ “ (Emphasis added)
Apparently, under the plain language of the “handbook” training for supervisors, it is expected and anticipated that some employees are going to “refuse to sign” as in the instant case and manifestly all such refusals are not insubordination which will require-as here-the ultimate penalty of termination.
Whether the Grievant’s anxiety and concern over being brought into Robbins’ office on December 2, 2003 and being ordered to sign a document which he claimed he did not understand triggered employee rights accorded under Weingarten is not here determined and relied upon in this opinion even though it is clear to the Arbitrator that the Grievant believed the interview brought him into disciplinary focus. Nonetheless, the Arbitrator does not base his opinion herein in any respect on alleged rights based upon Weingarten and its progeny.
Rather, the Arbitrator bases his opinion herein closely defined by the stipulated issue herein, viz. was the removal of the Grievant for just cause? It is uniformly recognized that under a just cause provision it is for the arbitrator selected by the parties to make such determination. A just cause test mandates that the punishment assessed by the employer be reasonable in light of all the facts and circumstances present.
In essence, the Agency argues that the single act by the Grievant in Robbins’ office on December 2, 2003 was so reprehensible that such offense was dischargeable summarily. Stated differently, no matter what the surrounding facts and circumstances, when Grievant refused to sign as ordered by Robbins-even though he said that he did not understand the document and wished to review it with a union representative, such failure was insubordination mandating the ultimate penalty of termination. The fact is as shown by all the testimony that Grievant returned in five minutes and wanted to sign but was not permitted. Grievant had in a brief moment made his bed and must forever lie in it. This is so according to the Agency even though the “Supervisor’s Guide to Discipline” expressly provides in pertinent part “a formal disciplinary action such as a letter of reprimand or a suspension is appropriate for a first offense of a deliberate refusal to follow an explicit and a proper order.”(Emphasis Added). Chapter 7-Insubordination/Failure to Follow Supervisor’s Instructions).
In the instant case the Grievant had an unblemished record for five and one-half years of employment without ever having received even a reprimand and with above average performance appraisals.
So also, the Agency through Robbins did not know about and/or even consider the procedure in the Supervisor’s Guideline which provided-where an employee refused to sign a notice-a witness could attest to the failure. In failing to utilize such procedure Supervisor Robbins candidly admitted that he did not know about it and that it was a “pointer” which could apparently be rejected out of hand. Nonetheless, it would appear conclusively that the “efficiency of the service” would have been promoted far better had Robbins been aware of the available procedure rather than the draconian and expensive procedure utilized by the Agency’s handling herein.
The Agency’s “Supervisor’s Handbook to Discipline” provides in pertinent part that the key thing to remember is “that the punishment should be the minimum necessary to correct the behavior and it should fit the offense.” Removal from service is characterized as “the capital punishment of Federal discipline.”
“It should be used only for very egregious first offenses (such as rape of an alien, embezzlement of thousands of dollars from the government or other felony criminal misconduct).” (Emphasis Added) Under the above test, the Grievant’s first offense can in no manner be deemed egregious nor did it warrant “the capital punishment of Federal discipline.”
It is generally recognized that an employer’s burden of proof in a discharge case obligates the employer not only to prove the alleged misconduct but also that the penalty imposed was justified by the facts and circumstances.
As noted in the Grievant’s brief, the cost of available fair alternatives and the cost of the actions actually taken by management is striking. According to one representative of the Border Patrol, recruiting, hiring and training a new officer costs the service in excess of $100,000.00 (citing authority). There is a cost advantage of reinstating an individual who has the ability to immediately perform the duties of a Border Patrol officer. Especially is this true where the individual has a five and one half year background of above average performance.
It is apparent that the damage to the vehicle-if viewed in a worst case scenario would only call for a reprimand-was almost completely preempted by Grievant’s interrogation in Robbins’ office. It evidently was introduced herein to complete the report which called for Grievant’s removal from service.
For all the foregoing reasons the Arbitrator finds and concludes that the removal of the Grievant for the reasons specified was not for just cause and to promote the efficiency of the service.
However, the Arbitrator’s opinion herein should in no way be read or construed to support the proposition that the Grievant or any employee may with impunity refuse to carry out a properly directed order by supervision.
The Arbitrator’s opinion herein has no precedential effect and is limited to the uniquely special facts and circumstances of this case.
The Arbitrator’s decision herein draws its essence-substantively, procedurally and otherwise-from the parties’ Collective Bargaining Agreement.
The Grievant shall be reinstated to his former position of employment and made whole for all lost wages and benefits. Additionally, the Arbitrator retains jurisdiction herein to assist, if necessary, in resolving any issues that may arise from the implementation of the remedy or otherwise.
—— Award ——
The removal of the Grievant, C__, was not for just cause and to promote the efficiency of the service. Grievant, C__, shall be reinstated to his former position and made whole for all lost wages and benefits. Additionally, the Arbitrator retains jurisdiction herein to assist, if necessary, in resolving any issue that may arise from the implementation of the remedy or otherwise.
1 Supervisor Taylor, who had no training in investigating accidents, submitted a report resulting in the proposed letter of reprimand. Taylor arrived at the scene of the accident at about 6:00 p.m., when it was dark. The accident was approximately forty-five (45) minutes earlier at twilight, when the sun is still up, but it was dark enough that C__’s vision was impeded as he drove. The accident took place in an impoverished colonia south of Laredo where there were no municipal police and patrolling sheriffs deputies were very short handed. It was a dangerous area. No street lights covered the area of the accident. Drug smuggling was common. The road was paved but had loose gravel on the top. Braking resulted in skidding or slipping of control. By contrast, the investigator’s pictures were obviously taken the next day in broad daylight. Agency’s opening statement acknowledged that the investigation was an assessment of fault. The only evidence of Grievant following too closely or too fast was his statement that because he had seen brake lights, he should have known the car he was pursuing might stop. That evidence was a conclusion based on the written memo of C__. As a result, management and the Arbitrator never learned of C__’s explanation of this written memo concerning brake lights until Grievant testified. His explanation was not refuted in evidence and is reasonable. At the hearing he explained that the brake lights flashed while he was far away and the vehicle stopped as he got close.
2 “Air Marshals Apply to Return to Border Patrol”, by Bridgette Blair, Federal Times, March 10, 2003, on line at http://federaltmes.com/index.php?S=232591.