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In re
and
The
National Border Patrol Council
AFGE
Local 2455
120
LA (BNA) 1397
J. Mart Mitchell,
Arbitrator.
Background
The U.S. Customs & Border Protection (hereinafter referred to as the
Agency or “CBP”) is a bureau of the Department of Homeland Security,
headquartered in
The I.N.S., now CBP, and national Border Patrol
Council are parties to a Collective Bargaining Agreement (the “CBA”) executed
on
On
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.
Issue Presented
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:
* * *
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:
* * *
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.
Notes
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.