UNTIMELY DISCIPLINE SUGGESTS CBP MULTIPLE PERSONALITY DISORDER
What does it say about an agency when it takes months or even years after it becomes aware of an employee’s misconduct to discipline the employee? We think it suggests a serious mental illness among the agency leaders, perhaps Multiple Personality Disorder (MPD). FLRA thinks it is grounds for mitigating the discipline and ordering back pay.
Normally, we try to avoid medically diagnosing agency leaders for lots of reasons, e.g., we have absolutely no training in the field. But decades of films dealing with split-personality characters such as Jekyll and Hyde, Sybil, Norman Bates, The Hulk, and Charlie Baileygates give us enough armchair expertise to deal with the really obvious cases. When you toss in that the agency involved here is Customs and Border Protection, which already is notorious for its self-destructive labor relations behavior, it seems like an easy call. (See our FEDSMILL posts entitled, “LR’S Biggest Losers,” and “The NTEU-AFGE Race Continues At DHS.)
In this case, (NTEU, 67 FLRA 8 (2012)), the employee violated a legitimate agency rule. He let suspected drug smugglers into the country without a thorough search of their vehicle—even though the agency computer alerted him to their drug activity. When the agency found out, it removed his weapon and denied him the right to work overtime, which often amounts to an extra $35,000 a year for the GS-12 CBP officers. He was put on light duty for 40 hours a week. However, despite reacting quickly by suspending an employee’s OT earnings, the agency took over 12 months to investigate the incident and another six months to decide upon a ten-day suspension as the final decision.
What does it say about agency leaders when, on the one hand, they respond quickly to an alleged infraction by taking away from the employee as much as $35,000 a year and denying themselves a fully armed officer, but then they move at a leisurely pace to investigate and adjudicate the matter? From our admittedly not-so-learned perspective, that kind of management behavior screams mental illness. CBP leadership has one personality that is the tough, quick acting, decisive cop and another that is driven by a laid-back, manana-will-be-fine spirit.
Having seen this split-personality leadership behavior for over a decade, NTEU negotiated a clause requiring management to take disciplinary action in a “prompt and timely manner.” When it took this case before an arbitrator arguing that those contract words were violated, the arbitrator agreed with the union and ordered the agency to reimburse the employee for lost overtime he should have received between the date he was first denied overtime and the date the suspension ended. He also cut the ten-day suspension to five days. At $35,000 a year for 18 months that could be over $50,000 in retroactive OT pay on top of five days of back pay.
As is its nearly uninterrupted pattern, CBP management appealed the decision to the FLRA despite the fact that it loses cases before FLRA more often than any other agency. And as has happened so often before its appeal did nothing more than increase the back pay it owed the employee due to the interest and increased attorney fees.
The important part of this case for the rest of us is that FLRA brushed aside CBP’s allegation that the arbitrator had to find that its removal of the firearm was an “unjustified and unwarranted” personnel action before he could order back pay. Management asserted that all he did was find that the contract was violated, i.e., CBP failed to act in a prompt and timely manner. FLRA dismissed CBP’s claim saying, . . . “the Arbitrator found that the grievant experienced a reduction in pay because the Agency violated the parties’ agreement by failing to take action against the grievant in a ‘prompt and timely manner.’ Id. at 14-17. These findings satisfy the Back Pay Act’s requirements for a backpay award. Moreover, the Agency does not dispute the Arbitrator’s implicit determination, encompassed within the Arbitrator’s finding of a contract violation, that had the Agency complied with the parties’ agreement by acting in a ‘prompt and timely manner,’ Award at 15, the Agency would have restored the grievant’s firearm sooner, ‘resultantly tak[ing him] off light duty,’ id. at 16, and thereby allowing him to return to normal duty sooner.”
In other words, contract clauses requiring timely disciplinary action can be enforced by an order that the employee be retroactively paid for all compensation lost due to agency foot-dragging even if the underlying employee behavior deserved discipline.
If we had CBP leaders on a couch we might toss in with our MPD diagnosis a comment on how irrational it is to let investigations drag on. Delayed investigations and decisions create the risk of invalidating the right to discipline at all, create tens of thousands of dollars in back pay liabilities, and deny the agency the full services of an employee, who in this case was rated as “excellent” just four months after his weapon was taken. On top of that, the agency becomes liable for tens of thousands in attorney fees and it once again demonstrates to its own employees that when there is a dispute between a manager and the union, the union is almost always is right.