In The Matter Of The Arbitration Between   FRATERNAL ORDER OF POLICE, DEPARTMENT OF CORRECTIONS LABOR COMMITTEE     Union,                               and   DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS,   Employer.

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FMCS Case No.   080423-02708-T   (A.C., Grievant)

 

Hearing held on June 25 and July 9, 2009, in Washington, DC.

Before: Stephen E. Alpern, Arbitrator

 

Appearances

 

For Fraternal Order of Police                      For Department of Corrections

J. Michael Hannon, Esq.                             Debra Allen-Williams , Esq.

Ann-Kathryn So, Esq.                                  Jonathan O'Neill, Esq.                                          

 

 

OPINION AND AWARD

 

 

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 attorney’s 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 unit’s 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 NW3’s 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 inmate’s body was later removed from the facility to the custody of the D.C. Medical Examiner.

 

          The Department’s 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 Grievant’s 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 inmate’s] 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 Department’s Office of Management Information and Technology Services. Chakraborty was a CS-14 grade employee who reported to the Director of the Department’s 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 Grievant’s 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 Grievant’s 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.

•

It is your responsibility to test, where feasible, the credibility of employee testimony when they are responding to adverse action charges rather than to accept their statements without question. Apparently you did not view the tape, check the logbook or request the training records in this case. All three of these records contain objective evidence that directly contradicts Corporal Claiborne's testimony and the validity of Officer Young's log entries that Corporal Claiborne conducted the required security checks every half hour. Moreover, there is nothing in the record to suggest that the presence of nursing staff on the unit is an excuse for not conducting the required security checks. In fact, if an officer cannot handle all the required functions, he is required to call for the zone supervisor to provide guidance and assistance. Corporal Claiborne made no such request.

          On January 31, 2008, Chakraborty issued a brief remand decision in which she found that the Grievant’s testimony was contradicted by the log book and concluded that, “[the Grievant’s] 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 Officer’s remand report supported removal for cause, based on negligence. In his decision, Brown described both Chakraborty’s 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] inmate’s … 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 Department’s 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 Grievant’s 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 unit’s 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 Grievant’s 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 Officer’s 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 attorney’s 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 Union’s 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 inmate’s 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 Grievant’s 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 Grievant’s 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 Brown’s 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 attorney’s fees under the federal Back Pay Act. Payment of fees would be “in the interest of justice,” if the Grievant prevails, because DOC’s actions were initiated in bad faith and clearly without merit. Further, nothing in the Agreement precludes payment of fees to a prevailing grievant.

 

         

Discussion and Conclusions

 

                    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 employee’s 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 Grievant’s constitutional rights.

  This does not resolve the issue of whether the Grievant’s 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 Brown’s desires. In fact, her initial recommendation demonstrated that she was willing to consider the Grievant’s 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 Union’s 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 Union’s arguments that the Grievant’s 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 unit’s 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 Young’s 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 Grievant’s 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 DOC’s 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 officer’s 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 employee’s 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 Grievant’s 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 inmate’s suicide on DOC’s consideration of this factor. William Smith, the Warden at the time, who proposed the Grievant’s 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 Grievant’s negligence, the inmate’s “suicidal attempt was not discovered until well after he had expired.”   Based on the foregoing, I conclude that the inmate’s 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 employee’s 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 Grievant’s favor.

 

With regard to the fifth Douglas factor, the effect on the employee’s ability to satisfactorily perform his duties and on the supervisor’s 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 Director’s loss of confidence did not have a reasonable basis. There is nothing in the Grievant’s 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 agency’s 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 Department’s reputation, there is no evidence in the record that the Grievant’s negligence had such an effect.

 

The potential for an employee’s 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 Grievant’s 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. Attorney’s 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 attorney’s 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 attorney’s 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 attorney’s 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 attorney’s 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 employee’s right to attorney’s 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 employee’s substantive statutory rights, while clearly holding that the Union may waive the employee’s 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 attorney’s 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 Grievant’s 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 attorney’s 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 attorney’s 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 attorney’s fees and/or compliance with this Award.

 

 

Dated this 15th day of September, 2009.

 

 

Stephen E. Alpern

Arbitrator