Hearing
held on June 25 and July 9, 2009, in Washington, DC.
Before:
Stephen
E. Alpern, Arbitrator
For
Fraternal
Order of Police
For Department of Corrections
J.
Michael Hannon, Esq.
Debra
Allen-Williams,
Esq.
Statement of the Case
As parties to a collective bargaining agreement, effective
from December 19, 2002, to September 30, 2005 (the Agreement), the
Union and the Employer (DOC or the Department) submitted this
matter to arbitration. Although the events giving rise to this dispute
occurred after September 30, 2005, the parties did not contest the
applicability of the 2002 Agreement. The dispute involves the
termination of the Grievant. The undersigned was selected by the
parties under the auspices of the Federal Mediation and Conciliation
Service to decide the matter.
Issues Presented
Based upon the arguments presented by
the parties, I have determined that the issues presented in this
matter are:
1)
Whether the
termination of the Grievant was procedurally defective and, if so,
what shall the remedy be?
2)
Whether the
termination of the Grievant was for cause and, if not, what shall the
remedy be?; and,
3)
Whether the
Grievant may recover attorneys fees.
Facts
DOC is the
government agency responsible for the custody of pre-trial detainees
and prisoners serving misdemeanor sentences under the District of
Columbia judicial system. The Department maintains a Central Detention
Facility which is made up of eighteen housing units.. The incidents at
issue in this case took place in the Northwest Three Housing Unit
(NW3). NW3 is a two floor unit that serves as an intake unit for
inmates who arrive from court or from other jurisdictions.
On December 22, 2006, two correctional officers, the Grievant
and Corporal Verine Young were assigned to work Shift 1 from 11:30
p.m. to 8:00 a.m. in NW3. According to testimony, this was a preferred
shift because it had less activity than other shifts. As the senior of
the two officers, the Grievant was designated as the Officer in Charge
(OIC). There was also a relief officer, Kevin Hill, who was
available to relieve officers in various units during their meal and
break periods, or if they requested assistance. During
most of the shift on that evening, Young worked in the Control Module
or bubble, a secure glassed in area in the center of the unit. One
officer was required to be in the bubble at all times. Young did work
outside the bubble between approximately 5:00 a.m. and 5:35 a.m. when
she supervised the feeding of the inmates, during which time the
Grievant worked inside the bubble. The Grievant took breaks from
approximately 2:15 a.m. until 3:15 a.m. and 6:10 a.m. until 6:35 a.m.
The duties and responsibilities of the correctional officers
are largely set forth in Post Orders. The NW3 Post Orders were issued
on February 22, 2005, and are twenty-three pages in length. The Orders
state that they are designed to secure a safe, clean, and humane
environment for inmates. Among other matters, the Orders set forth the
requirements for maintaining the units log book, handling the
feeding, medical care, and movement of inmates, conducting counts of
inmates, and conducting security inspections. During security
inspections the correctional officer is required to, inter
alia, check windows, bars, locking mechanisms, keys, security
cameras, condition of inmates and to conduct an informal count of
inmates. The security inspection must be documented in the log book.
The Orders require that security inspections be made and recorded
every thirty (30) minutes, unless emergencies or scheduled activities
(sick call, canteen, feeding, and etc.) inhibit such. However, if
these activities interfere with the security inspection, the
inspection shall be made immediately prior to any of these activities
and shall resume immediately following such. Further,
in such instances, the log book should reflect the activity that was
in progress which interfered with the security inspection.
There are security cameras in NW3 which are positioned to
observe each floor. The cameras are motion activated and only record
when there is some activity within their range. The cameras in NW3
were all in working order during the shift in question.
On the morning of December 23, the cameras in NW3 recorded
Young at approximately 5:00 a.m. in the upper tier of NW3 escorting
inmates who were detailed to distribute breakfast to the inmates in
NW3. The unit log book stated that this activity was completed at 5:35
a.m. At approximately 5:55 a.m. one of the cameras recorded the
Grievant speaking with an inmate. The cameras did not record any
further activities on NW3s tiers until sometime after 7:45 a.m.
The unit log book contained a number of entries for
activities after 5:49 a.m. The log book noted that security checks
were made by the Grievant at 6 and 6:30 a.m., that the unit appeared
safe and sound at 7:00 a.m., and that the nurse was in the unit at
7:05 a.m. with medications. There was an entry for 7:30 a.m. which
stated in its entirety, [v]isually made a security check, all appears
safe and sound. These entries were all made by Corporal Young.
As previously related, the Grievant was designated OIC. Among
other responsibilities, the OIC must maintain the inventory of all
cell block equipment, examine the security cameras at the beginning of
each shift, be present for inmate counts and prepare a count slip, and
count food trays delivered and removed from the unit, and conduct a
housekeeping inspection of the unit at the beginning of the shift.
Although the Post Orders specify that a log book be kept and that
numerous types of activities be recorded, the Orders do not specify
that the OIC has responsibility to review entries made by other
officers or to insure the overall accuracy of the logbook.
At approximately 7:45 a.m. on December 23, the Grievant and
Young ended their shift and were relieved by Shift 2 officers. At
approximately 8:00 a.m., while conducting an inmate count, an officer
found an inmate hanging in his cell. Department medical personnel were
immediately called and they were unable to revive the inmate. They
removed his body to the infirmary and subsequently called District of
Columbia emergency personnel. The inmates body was later removed from
the facility to the custody of the D.C. Medical Examiner.
The Departments Office of Internal Affairs conducted an
investigation into the suicide and prepared a report of its
investigation. The report found that the video cameras showed that
there was no activity on the tier where the inmate was housed between
5:46 a.m. and 7:46 a.m. However, the report also found that the inmate
was last seen alive in his cell at 6:10 a.m. and that the Grievant
conversed with him at that time. (This discrepancy was not explained
at the arbitration hearing.) The report concluded that the Grievant
and Officer Young failed to make security checks and inmate counts as
required by the Post Orders and that there was a strong possibility
that [the inmate] was hanging in a position between his bunk and
toilet during times that security checks and official counts were
allegedly completed.
On March 1, 2007, Walter Coley, Acting Administrative Major,
requested that Warden William J. Smith initiate action against the
Grievant for cause, noting the events described above, and asserting
that as a result of the Grievants failure to follow written policies,
the inmate was not discovered until well after he had expired. On
March 22, 2007, Warden Smith issued a letter proposing to discharge
the Grievant for Negligence. The letter recounted the incidents of
December 23 and concluded that:
You were therefore, negligent in the performance of your duties inasmuch
as you failed to follow the procedures set forth in the Northwest
Three Housing Unit Post Orders. In addition, you willingly overlooked
Corporal Young's false entries in the unit logbook and did not ensure
that security inspections were conducted or properly documented. As a
result of your negligence, [the inmates] attempted suicide was not
discovered until well after he had expired. Your negligence is
aggravated by the fact that you were the Officer-In-Charge with the
clear responsibility to ensure that the Unit functioned according to
the Post Order.
The
Grievant
was given the opportunity to have an administrative hearing before Dr.
Reena Chakraborty, an employee
in the Departments Office of Management Information and Technology
Services. Chakraborty was a CS-14 grade employee who reported to the
Director of the Departments Office of Management Information and
Technology Services. The Grievant requested the hearing at which he
was represented by a Union official. Although, in response to the
Grievants request, the Department provided him a copy of materials
relied on in proposing the action, including the NW3 logbook and
Internal Affairs report, Chakraborty did not receive a copy of the
logbook. On April 30, 2007, Chakraborty sent a report to Devon
Brown, DOC Director which recommended that the Grievant be suspended
for thirty days and reprimanded for failing to keep an accurate log
book. Based on the evidence before her, Chakraborty determined that
the Grievant had not conducted the required security checks because
he had been engaged in guarding the nurse for 70-80 minutes and
delivering newspapers.
More than eight months later, on January 8, 2008,
Brown sent a remand notice to Chakraborty, instructing her to
reconsider her recommendation. He did not send a copy of the notice to
the Grievant or to the Union, and Chakraborty did not make them aware
of the remand. In his notice, Brown asserted that both the log book
and the videotapes contradicted the Grievants testimony. The remand
notice stated, in part:
You rely on the videotape
when it support [sic.] Corporal Claiborne's testimony but reject it
in favor of Corporal
Claiborne's representation that he was out of view of the cameras
protecting the nurse
without taking any steps to determine the credibility of his
explanation despite the fact that a
readily available log book proves that she did not arrive until 7:05
a.m. Because Claiborne was neither guarding the nurse at 6:30 a.m. nor conducting the required
security check, Young's recording
in the logbook that a 6:30 a.m. security check was made by Claiborne
is clearly false. According
to the objective, recorded evidence, the 7:00 and 7:30 a.m. security
checks were also not
made but were false [sic.] reported by Corporal Young as completed.
On
January 31, 2008, Chakraborty issued
a brief remand decision in which she found that the Grievants
testimony was contradicted by the log book and concluded that, [the
Grievants] actions (not completing a live count, and not documenting
movement of all persons in and out of the housing unit faithfully)
combined with stated failure to act within policy guidelines (not
requesting relief pool support to conduct a live count if the officer
knew there was insufficient manpower on unit to conduct the live
counts) together constitute willful negligence on the part of the
correctional officer, this is a terminable offense. She therefore
recommended termination of the Grievant.
Brown issued a decision letter on March 10, 2008, in which he
found that the evidence of record and the Hearing Officers remand
report supported removal for cause, based on negligence. In his
decision, Brown described both Chakrabortys initial recommendation
and her recommendation on remand, apparently informing the Grievant
for the first time of the remand. Brown concluded:
Here, if you had patrolled the
tiers and made
safety
inspections every 30 minutes as required by NW-3 Housing Unit Post
Orders you may have (1)
been alerted to [the]
inmates potential suicidal behavior; (2) discovered
his
suicide attempt; or (3) been
able to take necessary and appropriate actions to
preserve
his life. In addition to not making your security rounds as mandated,
you willingly ignored Corporal Young's
false entries in the unit logbook indicating that security inspections
had been conducted as required. As a result of your negligence,the suicidal attempt was not discovered until well after he had
expired.
Your
negligence is this matter is aggravated by the fact that you were the
Officer-In Charge.
Brown
recounted
the Douglas[1]
factors that he considered relevant in considering a penalty, and
determined that removal was warranted. Thereafter the Union timely
filed a grievance and the matter was referred to arbitration.
Contentions of the
Parties
1) The
Departments Arguments
DOC contends that it has proven the charge by a preponderance
of the evidence. The Grievant failed to conduct required security
inspections and to ensure that accurate entries were made in the NW3
log book at 6:00 a.m., 6:30 a.m., 7:00 a.m., and 7:30 a.m. on December
23, 2006. According to DOC these failures seriously threatened the
integrity of government operations, constituted an immediate hazard to
inmates and employees, and were detrimental to public health, safety
and welfare.
Both the video and the Grievants own admissions prove that
he did not conduct the required security inspections. Thus, the
logbook entries to the contrary were not accurate. As the OIC, the
Grievant was responsible for requesting assistance if he was unable to
complete the inspections. He was also responsible for insuring the
accuracy of the units log book. Because of his actions, DOC can no
longer trust the Grievant to perform his core job functions, and that
trust cannot be reestablished through corrective discipline.
DOC argues that it did not commit any procedural errors in
the processing of the Grievants removal. Although neither the
Grievant, nor the Union, were furnished a copy of the remand order,
nothing in the Agreement or in D. C. personnel regulations imposes a
requirement to do so. Further, the pre-termination procedures provided
the Grievant fully comported with constitutional requirements.
Director Brown was authorized by the Agreement and by D. C. personnel
regulations to remand the Hearing Officers recommendation for further
consideration. Further, Chakraborty was qualified to act as a Hearing Officer and she did not feel
constrained to make her recommendation in a certain way.
As to the issue of attorneys fees, DOC contends that they
are precluded by the language of the Agreement. Thus, because the
Union bargained away its right to attorney fees, the Back Pay Act [2]
does not apply to this case.
2) The
Unions Arguments
The Union asserts that DOC failed to meet its burden of
proving the charge that the Grievant was negligent. Further, even if
the charge were to be sustained, the penalty was entirely too severe
for several reasons. First, although DOC claimed that it was not the
case; the inmates suicide clearly affected the discipline. Second,
DOC did not properly consider the Douglas
factors in determining the penalty. DOC did not consider
whether the offense was intentional or inadvertent or technical, or
was committed maliciously or for gain, or was frequently repeated, as
required by Douglas. There was no evidence that DOC considered the Grievants
discipline-free record, his past work record and length of service, or
the consistency of the penalty with that imposed on other employees
for similar offenses.
The Union further contends that DOC violated the Grievants
constitutional rights. The Department did not follow its own
regulations in effecting the discipline. The Union attacks the
pre-termination hearing on several fronts. It asserts that the Hearing
Officer was not impartial; that Director Browns role in the process
shows clear bias; that the remand memo confirms a final decision had
already been made; the DOC abused the remand
process;
and, that the secretive remand process disadvantaged the
Grievant.
Finally, the Union argues that if the action is reversed, the
Grievant is entitled to attorneys fees under the federal Back Pay
Act. Payment of fees would be in the interest of justice, if the
Grievant prevails, because DOCs actions were initiated in bad faith
and clearly without merit. Further, nothing in the Agreement precludes
payment of fees to a prevailing grievant.
A. Constitutional and
Procedural Claims
The
first
issue presented is whether there were procedural or constitutional
violations which would invalidate the discipline in this case. In the
first instance, the Union contends that the Hearing Officer was not a
disinterested person and that this constituted a due process violation
and a violation of the Agreement. While District of Columbia
regulations and provisions of the Agreement may expand the rights to
which the Grievant is entitled, the Constitution only affords a very
limited right with respect to pre-termination hearings. In Cleveland Bd. of Educ. v.
Laudermill,[3]
the Supreme Court made it clear that a full adversarial
evidentiary hearing is not required prior to a tenured employees
discharge. The purpose of a pre-termination hearing is not to
definitively resolve the propriety of the discharge but only to act as
an initial check against mistaken decisions -- essentially, a
determination of whether there are reasonable grounds to believe that
the charges against the employee are true and support the proposed
action.[4]
An employee is only entitled to oral or written notice of the charges
against him, an explanation of the employer's evidence, and an
opportunity to present his side of the story.[5]
Here, the Grievant was afforded these minimal protections. Although
the Hearing Officer did not initially receive all of the evidence, the
record demonstrates that the Grievant was provided copies of the log
book and the video tapes. While the Union makes much of the allegation
that the Hearing Officer was biased or pressured, there is no
constitutional right to a pre-termination hearing before a
disinterested person. Indeed, the hearing can even be held by a person
who both proposes and decides the removal.[6]
Accordingly, I conclude that DOC did not violate the Grievants
constitutional rights.
This does not resolve the
issue of whether the Grievants rights under the D.C. Personnel
Regulations or under the Agreement were violated. D.C. Personnel
Regulations, at 1612.2, require that the Hearing Officer be appointed
by the agency head and be at grade DS-13 or above and equivalent.
There is no dispute that the Hearing Officer met these requirements.
Although the regulations require that the Hearing Officer be an
attorney, if practicable, the Union does not object to the fact that
Chakraborty was not an attorney. The Union does, however, contend that
the requirement that the Hearing Officer not be in the chain of
command between the proposing official and the deciding official, nor
subordinate to the proposing official was not met. Contrary the
implication of the Union, the regulations do not prohibit the Hearing
Officer from being in the chain of command below the deciding
official, but only that she not be between the proposing and deciding
officials. The record is clear that she was in a different
organization than the proposing official and was not in the same chain
of command.
The
Union
also argues that the choice of Chakraborty violated the proscription
that the Hearing Officer have no direct and personal knowledge (other
than hearsay that does not affect partiality) of the matters contained
in the proposed removal action. The Union made no showing that
Chakraborty had any disqualifying prior knowledge of the matters
contained in the removal notice. Although the language relating to
partiality only refers to hearsay, there is the clear implication that
the Hearing Officer should be impartial. The Agreement goes even
further, describing the individual as the Disinterested
Designee/Hearing Officer. The Union has failed to carry the burden of
showing that Chakraborty was biased or interested in the outcome of
the case.. She was straightforward in her testimony that she had no
prior knowledge of the case, and that she had no predisposition of the
case. Although she believed that she was an at will employee, the
evidence showed that she was a career employee. In any event, she
testified, and I credit her, that she was not influenced by her
employment status to issue any particular recommendation. I have no
doubt that Director Brown made clear in the remand notice the outcome
that he wanted. This does not mean that she felt compelled to modify
her recommendation to suit Browns desires. In fact, her initial
recommendation demonstrated that she was willing to consider the
Grievants arguments and recommend in his favor if she thought the
evidence warranted such a recommendation..
The
questions
remain whether the remand violated the Personnel Regulations or the
Agreement and whether the Union was entitled to know of the remand.
Article 11, Section 9D of the Agreement states that the deciding
official may sustain, reduce the penalty recommended by the
Disinterested Designee, remand the matter for further consideration by
the Hearing Officer, or dismiss the charge but may not increase the
penalty recommended by the Disinterested Designee/Hearing Officer.
The Personnel Regulations impose the same restriction.[7]
The Union reads this section as prohibiting the Hearing Officer on
remand from recommending a greater penalty than she first recommended.
That is not what the language states. Here, the Director did not
increase the penalty recommended by the Hearing Officer in her final
recommendation. The Unions reading of the provision gives the remand
process no meaning. If the remand process cannot result in a Hearing
Officer reconsidering and recommending a greater penalty than in the
initial recommendation, there is no need for the deciding official to
remand, because he does not need further consideration to sustain or
reduce a recommended penalty. Instead, the most reasonable reading of
the provision is that it allows a deciding official to ask a Hearing
Officer to reconsider findings which led to a recommendation less
severe than that thought warranted by the deciding official.
With
respect
to the Unions arguments that the Grievants rights were violated by
the ex parte remand to the
Hearing Officer, I note that nothing in the Agreement or in the
Personnel Regulations require that notice of a remand be given. While
it might be a better practice to give such notice and the opportunity
for further response, there is no such right under the regulations or
the Agreement, and, because this is a pre-termination hearing, legal
authority compels a conclusion that there is no constitutional right
to such a procedure.
B. The Charge
Two
salient
facts are undisputed in this case. First, the Grievant did not conduct
required security checks and, second, the log book of NW3 was not
accurately maintained on the night in question. These facts are
necessary, but not sufficient to sustain the charge against the
Grievant.
DOC has not been entirely consistent in its characterization
of the nature of the charge. The proposal and the decision were based
on a charge of Negligence. Yet in its post-hearing brief, DOC
contends that the charges should be sustained because the Grievant
intentionally did not perform the required security inspections and
ensure that the units log book was accurately documented, and that
he deliberately failed to perform security inspections. In a similar
vein, the specification in the proposed removal notice stated that the
Grievant willingly overlooked Corporal Youngs false entries in the
unit logbook. In
contrast, the decision letter did not imply that the Grievant was
being charged with anything other than negligence. In resolving the
issue of how a charge should be construed, the structure and language
in the proposal notice and the decision notice will be examined. [8]
The nature of a charge should be construed in light of the
accompanying specifications and circumstances. [9]
Although there is some
basis to conclude that DOC was charging the Grievant with an
intentional act, the overall structure and content of the proposal and
decision support the conclusion that the charge was negligence and
that is all DOC must prove.
In
order
to demonstrate culpable negligence, DOC must showthat the Grievant
failed to exercise the degree of care required under the particular
circumstances, which a person of ordinary prudence in the same
situation and with equal experience would not omit.[10]
Here there is no doubt that the Grievant did not conduct the mandatory
security checks. The Grievant contends that he was engaged in other
activities when the security checks should have been performed and
that the NW3 Post Orders state that the security checks should be
performed unless inhibited by such activities. Even if I were to
credit the Grievants testimony regarding the other activities, the
Post Orders are clear that the security inspection shall be made
immediately prior to any of these activities and shall resume
immediately following such. The Grievant knew or should have known of
these responsibilities, yet he failed to conduct the scheduled
inspections either before or after the activities which allegedly
interfered with the inspection schedule. As an experienced officer,
the Grievant should have notified his shift supervisor that he was
unable to complete these mandatory activities. Under these
circumstances, the Grievant did not exercise the ordinary prudence
that is expected of a corrections officer with equal experience. This
specification is sustained.
In
its
removal decision DOC also determined that the Grievant failed to
conduct required inmate counts. However, in its post-hearing brief,
DOC does not discuss this specification. In any event, the Grievant
testified that all his counts cleared and Hill testified that he
conducted one of the counts that allegedly were not made. The
Department, in the proposed removal, claimed that the video tapes
supported this specification. However, the still photographs (made
from the tapes) which were introduced into evidence do not cover the
period of the alleged missed counts. Absent any other evidence, I find
that a preponderance of the evidence fails to support the
specification that the Grievant did not conduct counts at 2:00 a.m.,
3:00 a.m., and 4:00 a.m.
In
its
post-hearing brief, DOC attempts to bolster its negligence
specification with respect to the log book by asserting that the
Grievant chose to conspire with Officer Young to falsify the record.
There is absolutely no evidence in the record to support this
allegation. Instead DOCs proof must rest on a showing that the
Grievant, as OIC, was expected to ensure the accuracy of entries made
in the log book by Young, and negligently failed to do so. The
Department has not met its burden on this specification. Nothing in
the NW3 Post Orders devolves on the OIC the responsibility to check
the accuracy of another officers entries in the log book. Although
Director Brown testified that the OIC is expected to check the
accuracy of the log book, he was unable to point to anything in
writing that imposes such a requirement. Certainly if DOC had shown
that this expectation was well understood by employees or that the
Grievant was explicitly told of this expectation, it would prevail.
However, on the record before me I find that DOC has failed to prove
by a preponderance of the evidence that an OIC is expected to check
the accuracy of entries made in the log book by other officers.
Accordingly, this specification is not sustained.
B. The Penalty
Although
Douglas is
a federal sector case its standards apply in cases involving District
of Columbia employees.[11]
Where, as here, all of the specifications are not sustained, I must
determine whether the penalty chosen by the agency is within the
bounds of reasonableness.[12]
My function is not to substitute my judgment for that of the
Department, but at the same time I must ensure that the penalty does
not exceed the maximum reasonable penalty that could be imposed for
the sustained specification.[13]
The
first
relevant Douglas factor
is
[t]he nature and seriousness of the offense, and its relation to the
employees duties, position, and responsibilities, including whether
the offense was intentional or technical or inadvertent, or was
committed maliciously or for gain, or was frequently repeated.
Because this misconduct was denominated as negligence it was not
intentional or malicious. There was also no evidence that the Grievant
had been similarly negligent on other occasions. At the same time, the
negligence was directly related to the core duties of the Grievants
position to insure the security of the facility and the safety of the
inmates. Failure to conduct security checks directly impacted on these
responsibilities.
One
troubling
aspect regarding the seriousness of the offence is the impact of the
inmates suicide on DOCs consideration of this factor. William Smith, the Warden at the time, who proposed the Grievants
removal, testified that he did not consider a lesser penalty because
the inmate committed suicide, and had the officers done the security
check there may have been an opportunity to save this individual's
life. Although Director Brown testified that the suicide
was not a factor in his decision, the documentary evidence demonstrates
otherwise. As discussed above, in his decision removing the Grievant,
Director Brown stated that, as a result of the Grievants negligence,
the inmates suicidal
attempt
was not discovered until well after he had expired.
Based on the foregoing, I conclude that the inmates suicide
was considered as a substantial aggravating factor in the removal
decision. DOC has since
stated that the suicide was not a factor, and I do not consider it as
one. Accordingly, one of the aggravating factors originally considered
by DOC, cannot be considered in determining the maximum reasonable
penalty.
The
second
Douglas factor,
[t]he
employees job level and type of employment, including supervisory or
fiduciary role, contacts with the public and prominence of the
position, is also relevant. As a corrections officer, the Grievant
had important responsibilities which he failed to carry out with due
care. This is somewhat mitigated by the third and fourth Douglas
factors which are directed toward the past disciplinary record
and work record. There was no evidence of any prior disciplinary
actions against the Grievant, and he was a long-tenured employee who,
by all accounts, was fully satisfactory in his performance. These
factors mitigate in the Grievants favor.
With
regard
to the fifth Douglas
factor,
the
effect on the employees ability to satisfactorily perform his duties
and on the supervisors confidence in the employee, Director Brown
testified that the breach of the security practices by the Grievant
and the severity of the consequences made it impossible to trust the
Grievant with the day-to-day responsibilities of his position.
However, Director Brown was at least four, and possibly more, levels
higher in the chain of command than the Grievant. No supervisors who
dealt with the Grievant on a day-to-day basis testified that they had
lost confidence in the Grievant. Moreover, I find that the Directors
loss of confidence did not have a reasonable basis. There is nothing
in the Grievants record, or in the nature of the offense, to indicate
that lesser discipline would not induce the Grievant to avoid a
similar inattention to his duties and to satisfactorily perform his
duties in the future.
There
was
no evidence regarding the sixth Douglas
factor,
consistency
of the penalty with that imposed on others for the same or similar
offenses. However, the NW3 logs for days other than that in issue
showed that there were numerous instances of security checks not being
recorded at the appropriate times. This, of course, does not
demonstrate that the checks were not conducted. However, one high
level supervisor, Major Alonzo Jones, testified that it would not be
difficult to find employees who had not conducted scheduled security
inspections and that, in his opinion, absent other factors, such an
infraction would warrant counseling, in the first instance. Further,
he was not aware of any employee having been disciplined for a similar
infraction.
The
next
Douglas factor,
the
consistency of the penalty with the agencys table of penalties is of
little assistance because the D.C. Personnel Regulations at 1619.1
appear to allow a penalty ranging from a reprimand to removal for the
first instance of negligent performance of duties. While a penalty may
be enhanced under Douglas because
of the notoriety of the offense or the impact on the Departments
reputation, there is no evidence in the record that the Grievants
negligence had such an effect.
The
potential
for an employees rehabilitation is an important factor which DOC did
not appear to consider. The Grievant is a long-tenured employee who
was not cited for any prior misconduct. His conduct was negligent, not
willful. There is nothing in the record that indicates that
appropriate discipline would not make the grievant mindful of the
standard of care that he must maintain in his duties. The Grievant is
clearly dedicated to his profession. On one day he failed to meet the
requirements that DOC had every right to expect. He has long
demonstrated his ability to meet those requirements, and one lapse
does not compel a conclusion that he will lapse in the future.
The
Union
claims that the purported understaffing of the facility was a
mitigating circumstance within the meaning of Douglas
factor
11.
I reject that assertion. While NW3 only had two officers assigned to
Tour 1 and employees routinely worked overtime to cover staffing
needs, the clear evidence was that the Grievant did not request
assistance to conduct security checks on account of competing duties,
even though there was a relief officer available to provide such
assistance.
The
final
Douglas factor
is
the adequacy and effectiveness of alternate sanctions to deter such
conduct in the future by the employee or others. DOC failed to
consider that the Grievants conduct was not a willful act. DOC
apparently had not disciplined others for such negligence. The
Grievant was a long-term employee with a satisfactory record. Finally,
I find that the Department did not properly consider that lesser
discipline might correct the employee and serve as an example to
others.
Under
all
of the circumstances of this case, the evidence supports the
conclusion that DOC was faced with a tragic situation which must
necessarily have been troubling to the management of the Department.
DOC determined that employee negligence which it believed was, at
least in part, a cause of the tragedy should be dealt with harshly. I
do not criticize that determination. However, for whatever reason, DOC
decided to back away from linking the misconduct with the suicide. At
that point, the underpinnings of its removal action collapsed. Instead
DOC is left with a case of ordinary negligence by a long term employee
which could have had adverse consequences, but which did not.
The
D.
C. Personnel Regulations and the Agreement both incorporate the
concepts of progressive and corrective discipline. This concept is
also enshrined in arbitration case law. DOC has not shown that it
followed these principles and on the evidence before me, I must
conclude that removal exceeds the bounds of reasonableness.
Considering all of the evidence in this case, the maximum reasonable
penalty for the one specification which has been sustained is a
sixty-day suspension. Under ordinary circumstances this might be an
overly harsh penalty, but this negligence occurred in a correctional
facility. DOC has the right to hold its correctional officers to
higher standards and this severe penalty for the first instance of
negligence which had no actual adverse consequences is consistent with
that right. The Grievant and his fellow officers must be mindful of
the special requirements of their positions and the consequences of
not meeting those requirements.
C. Attorneys Fees
The
law
appears to be settled that the federal Back Pay Act, generally applies
to District of Columbia employees.[14] The Back Pay Act provides,
in material part, at 5 U.S.C. 5596 (b),
(1) An employee of an agency who, on the basis of a timely appeal or an
administrative determination (including a decision relating to an
unfair labor practice or a grievance) is found by appropriate
authority under applicable law, rule, regulation, or collective
bargaining agreement, to have been affected by an unjustified or
unwarranted personnel action which has resulted in the withdrawal or
reduction of all or part of the pay, allowances, or differentials of
the employee
(A) is entitled,
on correction of the personnel action, to receive for
the period for
which the personnel action was in effect
***
(ii) reasonable attorney fees
related to the personnel action which, with respect to any decision
relating to an unfair labor practice or a grievance processed under a
procedure negotiated in accordance with chapter 71
of this title, or under chapter 11 of title I of the Foreign Service
Act of 1980, shall be awarded in accordance with standards established
under section 7701 (g) of this title
The
present
dispute between the parties centers on whether the Agreement precludes
the award of attorneys fees. The language at issue is in Article 10,
Section 6b, which provides that the parties in an arbitration hearing
shall have the right, at their own expense, to legal and/or
stenographic assistance. DOC urges that this language waives any
entitlement to attorneys fees that might exist under the Back Pay
Act. As might be expected, the Union disagrees. Each party comes armed
with an arbitration award supporting its position. The case relied on
by DOC[15]
involves another collective bargaining agreement, but the language at
issue is materially indistinguishable from that at issue in this case.
There Arbitrator Wolf relied on both the bargaining history of the
parties and the language of their agreement to determine that the
agreement waived the entitlement to fees under the Back Pay Act. The
arbitrator stated that parties are never required to pay fees in
advance of a hearing. Thus in order to give meaning to the language
the arbitrator determined that it must have been intended to waive any
right to attorneys fees.
The
decision
relied upon by the Union[16]
arises under this Agreement. In that decision, Arbitrator Rogers
relied both on the absence of any bargaining history to demonstrate
that the Union had relinquished its rights to attorneys fees, and on
the lack of clear and unambiguous language reflecting a waiver. I
concur in result reached by Arbitrator Rogers for several reasons.
First, the issue presented in the Rogers decision is precisely the
same as that presented here and arises under the same contract. Under
such circumstances, I should give it great deference, if not
preclusive effect.[17]
To do otherwise would
introduce instability in the parties settled interpretation of the
Agreement. Second, there is some doubt whether the Union is able to
waive the employees right to attorneys fees.[18]
In its recent decision in 14
Penn Plaza v. Pyett, [19]
the Supreme Court seems to imply that a Union cannot waive an
employees substantive statutory rights, while clearly holding that
the Union may waive the employees procedural right to bring claims in
federal court by clearly and unmistakably requiring the employee to
arbitrate the claims. Whether or not the right to attorneys fees is a
substantive right, the fact is that the language of the Agreement does
not clearly and unmistakably waive the right to collect fees under
the Back Pay Act. The language merely states that the parties have the
right, at their own expense, to legal or stenographic assistance
(which is not recoverable under the Back Pay Act) at the hearing.
Nothing in the language clearly and unmistakably states that a
Grievant may not subsequently make a claim for fees under the Back Pay
Act when an arbitrator determines that a personnel action was
unwarranted. Accordingly,
I conclude that I have the authority to award fees under the Back Pay
Act in this proceeding.
Award
Based on the entire record in this matter:
1.
The
removal of the Grievant was not for cause.
2.
The
Grievants removal shall be reduced to a suspension without pay for
sixty days, and the Grievant shall be reinstated forthwith.
3.
The
Grievant shall receive all pay, benefits and entitlements provided
under the Back Pay Act and under the Agreement.
4.
The
Union may file a motion for attorneys fees with the Arbitrator no
later than twenty-one days from the date of this Award. Thereafter the
Union and the Department shall attempt to agree on the amount of any
attorneys fees to be awarded to the Grievant. If no agreement is
reached within fourteen days after the submission of the motion, the
Department will have an additional fourteen days thereafter to respond
to the motion.
5.
The
Arbitrator will retain jurisdiction for ninety days from the date of
this Award to resolve any disputes regarding attorneys fees and/or
compliance with this Award.
Dated
this
15th day of September, 2009.
Stephen
E.
Alpern
Arbitrator
[1] Douglas
v. Veterans Admn, 5 MSPR 280, at 305-6 (1981).
[2] 5
U.S.C. 5596.
[3]
470 U.S. 532
(1985).
[4] 470
U. S. at 546, 547.
[5] 470
U.S. at 546.
[6] Desarno v.
Dept of Commerce, 761 F. 2d 657, 660 (Fed. Cir. 1985)
[7]
Personnel Regulations, 1613.2.
[8] George v.
Department of the Army,
2007 MSPB 31, 7; James v. Department of the Air Force, 73 M.S.P.R. 300, 303-04 (1997).
[9] Langham v. U.S. Postal
Service, 92 M.S.P.R. 268, 12 (2002).
[10] Mendez v. Department of the Treasury, 88 M.S.P.R. 596,
26 (2001).
[11] D.C. Department of Public Works v. Colbert, 874 A. 2d 353 (D.C. Ct. of App. 2005).
[12] Williams v.
Department of the Army, 2006 MSPB 150, 7.
[13] Alberto v. Department of Veterans Affairs, 98 M.S.P.R. 50, 7 (2004).
[14]
Mitchell v. District of
Columbia, 736
A. 2d 222, 230-232 (D. C. Ct. of App. 1999).
[15]
District of Columbia Public Schools and Washington Teachers Union, Local
6,
AAA Case #16-390-629-06 (Wolf 2009).
[16]
Fraternal
Order of Police and Department of Corrections, FMCS No. 060925-60026-A (Rogers, 2008)
[17]
See, Burnham Corp., 88 LA 931934-935 (Rubin, 1987).
[18]
Contrary
to
the implication in Arbitrator Wolfs decision, it does not appear
that the Federal Labor Relations Authority decided this issue in Department of the Army and NAGE, Local R14-52, 39 FLRA 1215 (1991).
[19] No. 07-581,
555
U. S. ____, at slip op. 17 (2009)