WHAT SHOULD THIS EMPLOYEE’S PENALTY BE?

The employee in this not-so-hypothetical story has been with TSA for just over a year working as a Financial Specialist.  Prior to that, he had 22 years in the military. On the day in question he was detailed to the position of Administrative Officer and authorized to escort a GSA representative from the “unsanitized” to the “sanitized” areas of the John Wayne Airport in California.  (A sanitized area is behind the check point where everyone is screened for weapons.) The GSA rep was there to exam a mold problem.

There were two ways to move between the unsanitized and sanitized areas.  One way was to go through a specially designated security door normally used only by TSA employees escorting authorized visitors.  When the TSA employee first met the GSA rep in an unsanitized area he took the rep through that door.  Later in the day when the GSA rep was back in the unsanitized area he needed to again return to the sanitized area.  The TSA employee simply took him through the normal checkpoint all travelers go through without requiring that he be checked. They did not use the special doorway a distance away. A supervisor challenged the TSA employee’s authority to do that.  The employee not only immediately apologized for any inconvenience, but also explained that he had not received any training on how to move authorized GSA visitors between the two areas since he had never been a TSA Officer.  The employee was charged with “undermining required security procedures.” What do you think the proper penalty was according to MSPB?

Here are three hints.  (1) The agency charged the employee with that because it had to spend time listening to the employee explain why he thought he was authorized to take the GSA rep from the unsanitized to sanitized area.  Oh, what a burden that must have been on the efficiency of the entire operation. (Sarcasm alert!)  (2) The employee, on the other hand, argued that at most his actions amounted to a technical error.  (3) The agency removed the employee and the entire matter went before MSPB–that bastion of fairness, that monolith of justice, that champion of doing the right thing, that model of logic, etc.

It decided that this untrained employee working in a detailed assignment who had complete authority to escort the GSA rep from one area to another and about whom it could find not a scintilla of evidence that he intended to mislead anyone or was doing this for personal gain, nonetheless, deserved a 30-day suspension for merely attempting to use the wrong door, even though the Board said the employee “did not seriously jeopardize airport security or safety.” (Ivan the Terrible, and a certain Marquis, would have loved these guys.  This is one of those cases to remember should any of the Board members voting for this penalty try to make a living as arbitrators after they leave the Board.)

This is a case that should be publicized widely among nonmembers in case they think that they can get just as fair treatment from an MSPB without the union as they can from an arbitrator. We cannot recall any arbitrator imposing such a severe penalty on an employee and his family under circumstances like this.  It is our professional opinion that if the union had put this removal before an arbitrator the employee would have been fully exonerated by most neutrals and at worst given a reprimand–or one day suspension by even the knuckle-draggers among dispute resolution professionals.

You can read the entire decision at Rommel Boo v. DHS, 2014 MSPB 86 (2014)

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.

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