LABOR-MANAGEMENT ARBITRATION

In the Matter of the Arbitration between

AFGE LOCAL 1770, No. AFGE-FB-EVP-210327.UG

Union,

and

UNITED STATES
DEPARTMENT OF THE ARMY,
Agency.
_______________________________/

OPINION OF THE ARBITRATOR

July 25, 2022

After a Hearing Held May 10, 2022

Via Microsoft Teams Videoconferencing Platform

For the Union: For the Agency:

Ryan Saunders Jessica I. Ortiz-Sanchez
Legal Rights Attorney Staff Judge Advocate
AFGE, AFL-CIO AFZA-JAV (Civil Law Division)
80 F Street NW 2175 Reilly Road, Stop A
Washington, DC 20001 Fort Bragg, NC 28310
 OPINION PART I. BACKGROUND OF DISPUTE

Grievant was employed as an HVAC Equipment Technician, Grade 10, by the

US Army at Fort Bragg, North Carolina, where he remains a member of American

Federation of Government Employees Local 1770. On November 25, 2020, the

Supervisor of the HVAC Shop issued Grievant a Notice of Proposed Removal

alleging multiple offenses, some of which were quite serious. AX 2. The allegations

are summarized as follows:

Charge 1: Conduct Unbecoming a Federal Employee

SPECIFICATION 1: c May 20, 2020. “[Y]ou falsely certified that you worked nine
(9) hours on your time card … when in fact you were not at work.”

SPECIFICATION 2: c May 21-22, 2020. “[Y]ou falsely certified that you worked
both days, a total of eighteen (18) hours on your time card … when in fact you were
not at work.”

SPECIFICATION 3: c June 13, 2020. “[Y]ou falsely certified that you worked nine
(9) hours of unscheduled overtime … on your time card … when in fact you were
not at work.”

SPECIFICATION 4: c June 15, 2020. “[Y]ou falsely certified that you worked nine
(9) hours of unscheduled overtime … on your time card … when in fact you were
not at work.”
SPECIFICATION 5: c June 25-26, 2020. “[Y]ou falsely certified that you worked
seventeen (17) hours on your time card … when in fact you were not at work.”

SPECIFICATION 6: c June 30, 2020. “[Y]ou falsely certified that you worked nine
(9) hours … on your time card … when in fact you were not at work.”

Charge 2: Absent Without Leave (AWOL)

SPECIFICATION 1: c July 21, 2020. “You were absent without authority for five
(5) hours from the HVAC Shop, your required duty station.”

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SPECIFICATION 2: c November 5, 2020. “[Y]ou failed to report for work.”

Charge 3: Lack of Candor

SPECIFICATION: c August 18, 2020. “You not only failed to report the” [accident
with “the Government Owned Vehicle (GOV) assigned to you”], “but when asked
you were not truthful.”

Charge 4: Failure to Follow Proper Procedures

SPECIFICATION 1: c August 17, 2020.

a. “Your failure to inform your chain of command about damages sustained

to your assigned GOV, was in violation of Fort Bragg Regulation 385-10
… .”

b. “Using tobacco products is prohibited at all times in Government Owned

Vehicles (GOV).”

c. “[Y]ou avoided wearing your seat belt … .” AX 2 ■

In paragraph 2 of the Notice, the Shop Supervisor explained the rationale for

the Proposed Removal:

I consider your actions to be detrimental to the efficient operations of the

HVAC Shop … . In determining the appropriate proposed penalty, I have
considered the following aggravating factors: 1) the nature and seriousness of
the offenses as a HVAC Equipment Technician; 2) loss of trust and confidence
in your ability to make sound judgements; 3) the repeated nature of the
offenses over an extended period of time; you were issued a Notice of
Reprimand on 31 July 2019 for similar attendance related issues [AX 1]. 4)
the effect on the leadership's confidence in you as an employee; 5) the clarity
of notice of unacceptable behavior.

Although the Notice of Proposed Removal is dated November 25, 2020, on

page 5, the line prepared for Grievant’s signature to acknowledge receipt of the

document is stamped REFUSED TO SIGN and the line prepared for the date of

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acknowledgement is stamped 22 DEC, 2020, the date used to reference the document

in the Notice of Decision on Proposed Removal and Offer of Last Chance

Agreement, dated March 3, 2021, UX 2. AX 2 indicates that it was accompanied by

8 enclosures, the last of which was Rights to Appeal. However, the Rights to Appeal

enclosure was not attached to AX 2 or UX 1 provided to the arbitrator.

Grievant then was afforded his rights under 5 USC §§ 7512-7513 & 7121 and

under the negotiated Grievance Procedure, Article 39 of the Contract Agreement

Between Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North

Carolina, and American Federation of Government Employees Local 1770 AFL-

CIO (JX 1 or “CBA”). Neither Grievant nor the Union filed a grievance at that time.

On March 5, 2021, Grievant received the Notice of Decision on Proposed

Removal and Offer of Last Chance Agreement, dated March 3, 2021. UX 2 & AX

3. The Decision stated in pertinent part:

You were afforded fifteen (15) calendar days from the date of the proposed
action dated 22 December 2020 to reply orally, in writing or both. You made
an oral reply on 6 January 2021 and provided a written statement on 14
January 2021. After full and careful consideration of the matters presented in
your oral and written reply, and the reasons for the proposed removal, I find
that the reasons stated in the notice of proposed removal are supported by the
evidence and warrant your removal from federal service. However, I will hold
the date of removal in abeyance to give you the opportunity to successfully
meet terms set forth in a Last Chance Agreement (Enclosure 1). In making
this decision I applied all relevant Douglas Factors (Enclosure 2) and taken
into account aggravating factors such as the nature and seriousness of the
offense, my loss of confidence in your ability to function in your position and
perform in the future, your history of attendance issues, past work record, and
clarity of notice.

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 Upon receipt of this decision letter and enclosures, please sign below to
acknowledge receipt and return immediately. If you wish to enter into the Last
Chance Agreement, please notify Mr. [SR] promptly in writing or via email
…, but not later than seven (7) calendar days from the date of receipt by
returning the agreement signed. If you do not accept the offer of a Last Chance
Agreement, your removal will be effective on the eighth (8th) calendar day
from receipt of this document. Appendix B Appeal Rights describes your
review rights in the event you do not accept the offer of a Last Chance
Agreement. (Enclosure 3)

While Appendix B did describe Grievant’s right to appeal to the Merit Systems

Protection Board, and to the Equal Employment Opportunity Commission in case of

a discrimination complaint, it did not mention his right to appeal through the

negotiated Grievance Procedure in the CBA.

Enclosed with the Notice of Decision on Proposed Removal was the deciding

official’s analysis of the Douglas Factors. UX 2. Douglas v Veterans Administration,

5 MSPB 313; 5 MSPR 280 (1981). These are the official’s comments on the 12

Factors:

Factor 1, Nature and seriousness of the offense, Comment:

Conduct Unbecoming a Federal Employee: There have been multiple attendance
discrepancies that have a negative impact to the overall morale of the shop, mission
and the common level of service that we provide to our customers. Based on the
frequency and the fact that the employees have been counseled on these items in the
past it leads me to believe that they are intentional. Provided statements from work
leaders confirm the issues with attendance.

Absence Without Leave (AWOL): There have been at least 1 instance where the
employee was unable to report for duty but neglected to inform his chain of
command. There has also been at least 1 instance where the employee filled out a
leave form and left place of duty. An unapproved leave form is an un authorized
absence. [Grievant] has been with the organization for over 10 years and is well
aware of policies concerning leave.

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Lack of Candor: There were inconsistencies with your details as to the
circumstances involving damages to your assigned government vehicle (GOV)

Failure to Follow Procedures: [Grievant] failed to report an accident to his

assigned GOV to supervision which is in violation of TM 38-600, AR-385 and
organizational guidelines. Any altercations involving a GOV are to be reported to
supervision immediately. [Grievant] failed to obey the tobacco policy. He also failed
to wear his seatbelt while operating a GOV violating both Federal and State
regulations/law

Factor 2, Employee's job level and type of employment, Comment:

Absence Without Leave (AWOL): [Grievant’s] failure to schedule leave and report
to duty as scheduled has caused hardship to the shop impacting morale and common
levels of service. Other technicians had to be pulled to cover his area of responsibility
taking from their obligations.

Lack of Candor: [Grievant] has been reassigned from an area of responsibility

based on a lack of common level of service provided to the customer. Customer
concerns prompted the reassignment. This also includes inaccurate updates on
performed repairs that were false. His credibility is questionable at best for both the
organization and past customers.

Factor 3, Employee's past disciplinary record, Comment:

Conduct unbecoming a Federal Employee / Lack of Candor /: [Grievant] does
have a disciplinary history as it pertains to attendance and inadequacies with time
card submittals in which he receives entitlements. He also has a history of not
notifying his chain of command in regards to his intentions when it comes to
attendance. [Grievant’s] past and current misconduct is ongoing, consistent and
relevant to the proposed action

Factor 4, Employee's past work record, Comment:

[Grievant] has 15 + years combined Federal Service but he has also established
a history of varying offences (operation of a GOV, attendance, time reporting, failure
to follow established procedures and candor).

Factor 5, Employee's ability to perform in the future, Comment:

Lack of Candor: There is a lack trust of with [Grievant’s] ability to account for his
time and attendance accurately.

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Failure to Follow Procedures: [Grievant’s] misconduct has demonstrated his
inability or disregard to follow established procedures.

Factor 6, Consistency of penalty with other employees' penalties for similar offenses,
Comment: Disciplinary measures are consistent with similar offenses.
Unfortunately, efforts to change unwanted behavior have been unsuccessful. This is
relevant with all 4 charges.

Factor 7, Consistency with Agency's Table of Penalties, Comment: AR 690-700,

Chapter 751, table 1-1, is applicable and [Grievant] has committed misconduct that
warrants progressive discipline.

Conduct Unbecoming a Federal Employee: There have been multiple attendance

discrepancies that have a negative impact to the overall morale of the shop, mission
and the common level of service that we provide to our customers. Based on the
frequency and the fact that the employees have been counseled on these items in the
past it leads me to believe that they are intentional. Provided statements from work
leaders confirm the issues with attendance.

Absence Without Leave (AWOL): There have been at least 1 instance where the
employee was unable to report for duty but neglected to inform his chain of
command. There has also been at least 1 instance where the employee filled out a
leave form and left place of duty. An unapproved leave form is an un authorized
absence. [Grievant] has been with the organization for over 10 years and is well
aware of policies concerning leave.

Lack of Candor: There were inconsistencies with your details as to the

circumstances involving damages to your assigned government vehicle (GOV)

Failure to Follow Procedures: [Grievant] failed to report an accident to his

assigned GOV to supervision which is in violation of TM 38-600, AR-385 and
organizational guidelines. Any altercations involving a GOV are to be reported to
supervision immediately. [Grievant] failed to obey the tobacco policy. He also failed
to wear his seatbelt while operating a GOV violating both Federal and State
regulations/law

Factor 8, Notoriety of the offense or its impact on the Agency's reputation,

Comment: None.

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Factor 9, Clarity of notice to employee of unacceptable conduct, Comment:
[Grievant] has been employed with DPW for 10+ years and is aware of policies.
[Grievant’s] supervisor has counseled him in the past in an attempt to correct
misconduct.

Conduct Unbecoming a Federal Employee / Absence Without Leave (AWOL):

[Grievant] has been counseled numerous times about attendance and proper leave
request/submittal procedures.

Lack of Candor: [Grievant’s] actions has resulted in a loss of trust not only within
the organization but also with the customers he provides a service to.

Factor 10, Potential for employee's rehabilitation, Comment:

Conduct Unbecoming a Federal Employee: [Grievant] has continued misconduct
after being counseled about his attendance and failure to inform his chain of
command. During the verbal reply [Grievant] did not take responsibility for his
actions and contributed that the charges against him were because his supervisor was
out to get him.

Lack of Candor: Provided documentation supports that [Grievant] has falsified

government documents in which he receives entitlements

Failure to Follow Procedures: [Grievant] has continued misconduct after being

counseled. During the mitigation he stated that he didn't do anything wrong that
would warrant the proposed action. He did state that he did not report damage to his
GOV appropriately. He did not deny failing to wear his seatbelt in accordance with
State and Federal laws/guidelines

Factor 11, Mitigating circumstances, Comment:

I am not aware of any medical conditions or emotional problems that contributed to
misconduct. There is nothing on file with his immediate supervisor or within the
organization that would suggest otherwise.

Factor 12, Adequacy of alternative sanctions to deter misconduct, Comment:

[Grievant] has engaged in misconduct despite efforts to correct unwanted behavior.
Disciplinary actions and progressions have been carried out in accordance with AR
690 - 700. [Grievant] has been given the opportunity to correct these actions and but
so far has failed to do so.

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Additional Comment: I would like to add that during the mitigation [Grievant] stated
that his supervisor was out to get him and was harassing him. I have not received
anything from [Grievant] formal or informal that supports a history of harassment.
UX 2. ■

Instead of exercising any appeal right, including filing a grievance under the

CBA, Grievant opted to sign the Last Chance Agreement, and did so on March 12,

2021. AX 3. Because the case hinges on the Last Change Agreement (“LCA”), it is

set forth in full:

LAST CHANCE AGREEMENT BETWEEN [GRIEVANT] AND THE

DEPARTMENT OF PUBLIC WORKS FORT BRAGG, NC

1. In the interest of avoiding protracted litigation, the Department of the Army

(hereinafter referred to as the "Agency") and [Grievant] (hereinafter referred to as
the "Employee") agree to settle all disputes between the parties concerning the
Employee's removal from Federal Service.

2. This Settlement Agreement (hereinafter referred to as the "Agreement")

constitutes the complete understanding between the parties and is binding upon the
all parties, their successors, and their representatives. No other terms, promises, or
agreements will have any force or effect unless reduced to writing and signed by all
parties to this Agreement.

3. The parties mutually agree that:

a. By entering into this Agreement, the Agency does not admit, and
specifically disclaims that the Army, any Army official or employee violated any
provisions of Title VII of the Civil Rights Act of 1964, as amended; the
Rehabilitation Act of 1973, as amended; the Age Discrimination in Employment
Act, as amended; the Equal Pay Act, as amended; the Federal Services Labor-
Management Relations Statute, as amended; or any other Federal or State statute or
regulation.

b. That the Agency's decision to remove the Employee from the HVAC
Equipment Technician, WG-5306-10, and from Federal Service was fully supported
by the evidence, was for just cause, and promoted the efficiency of the service.

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 c. That the Employee will not accrue nor is he entitled to any back pay,
attorney fees, compensatory damages, or any other form of damage award under this
Agreement.

4. The Agency agrees:

a. To hold its decision to remove the Employee in abeyance for two (2) years.
The two (2) year period, which begins on the date this Agreement is fully executed,
will hereinafter be referred to as the "Last Chance Period." The Agency agrees to do
this for the sole purpose of giving the Employee a one-time last chance to continue
employment with the Agency by allowing the Employee to demonstrate that he is a
good employee worth retaining.

b. The Parties agree that:

(i) The Agency will replace the removal action with a thirteen (13) days
suspension.

(ii) The effective date of the unpaid suspension period will be from March 8,
2021 to March 20, 2019 [sic].

(iii) A Standard Form 50-B, Notification of Personnel Action, effecting the

suspension will be placed into the Complainant's Official Personnel File as a
permanent document.

5. In exchange for the promises made by the Agency in paragraph 4 of this

Agreement, the Employee freely and voluntarily agrees to:

a. Accept and acknowledge that in exchange for the good and valuable
consideration in this Agreement, there is a full settlement and satisfaction of any and
all claims, monetary or non-monetary, Employee may now or hereafter have against
the Agency or its agents, including, but not limited to, any and all claims for back
pay, interest, emotional and physical compensatory damages, pain and suffering,
mental anguish, attorney fees or any other items related to any adverse action taken
against the Employee, as discussed in paragraph 4 above.

b. Withdraw, with prejudice, any and all actions currently pending, and refrain
from bringing any actions which could now be brought before any officer or Agency
arising from his employment with the Agency. This specifically includes, but is not
limited to all grievances, arbitrations, MSPB Appeals, Congressional/Presidential

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complaints, Office of Special Counsel complaints, Inspector General complaints,
and EEO complaints. Employee agrees that this Agreement may be used by the
appropriate authority as evidence that the Employee has withdrawn any of the above
actions.

c. That the Employee agrees that should he engages in any significant

misconduct at, or having a nexus to, work, including, but not limited to: conduct
unbecoming a Federal employee, absence without leave (AWOL), lack of candor,
and failure to follow proper procedures or does not perform the duties of the position
he occupies at a successful level during the Last Chance Period the Agency may
immediately remove him from his employment with the Agency and from Federal
Service, without further notice or additional due process.

d. That the Employee expressly waives any actual or perceived due process
rights, including, but not limited to, any notice of a removal action or any opportunity
to respond to any removal action, should the Agency elect to remove the Employee
for violating the Last Chance Period.

e. That the Employee expressly waives any and all rights he may have to file
any claims, grievances, causes of action, administrative actions, court actions, and/or
appeals over the suspension provided in paragraph 4 of this Agreement and over his
removal from any position he occupies in the event the Agency elects to remove the
Employee for violating any term of this Agreement. This specifically includes, but
is not limited to all grievances, arbitrations, MSPB Appeals, Congressional/
Presidential complaints, Office of Special Counsel complaints, Inspector General
complaints, unfair labor practice complaints and EEO complaints. Employee agrees
that this Agreement may be used by the appropriate authority as evidence that the
Employee has withdrawn any of the above actions.

6. The Employee further agrees that:

a. He has had the opportunity to review the Agreement, and has also been
offered the opportunity to consult a lawyer or other person of his choosing about this
Agreement before signing it.

b. He is under no duress or coercion of any sort by the Agency or any person

and enters into this Agreement, including all conditions stated knowingly, freely and
voluntarily.

7. All parties agree that this settlement Agreement will be treated as a confidential

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document subject to release only to those with an official need to know (to include
the Executive Committee of AFGE Local 1770, with further disclosure not
authorized) or with the written permission of the other parties. All parties further
understand that appropriate disciplinary actions can be taken against the Employee
for any unauthorized disclosures, and that unauthorized disclosures will not
invalidate any provisions of this Agreement and will not authorize reinstatement of
any actions withdrawn.

8. This Agreement is for the benefit of the parties thereto and it shall not serve as a
precedent for resolving any other complaints filed by the Employee or any other
person or group.

9. By signing below, the Employee acknowledges reading this Agreement in its

entirety, understanding all terms and conditions of this Agreement, and having done
so, knowingly, voluntarily, and freely enters into this Agreement without coercion
or duress.

10. Should any provision of this Agreement be determined by any court to be illegal
or invalid, the validity of the remaining parts, terms, or provisions shall not be
affected thereby and said illegal or invalid part shall be deemed not to be part of this
instrument.

11. The parties agree that this Agreement consists of 4 typed pages and that each of
the signatories have agreed to be bound by its terms.

12. This Agreement may be executed in multiple original counterparts, which when
taken together, shall constitute one and the same instrument. Faxed or photocopied
versions of this agreement which are fully signed and executed will be as valid and
enforceable as an original. AX 3. ■

Grievant served the 13-day suspension as specified in ¶ 4.b(i), from March 8, 2021

through March 20, 2021. AX 5.

By letter dated April 1, 2021, the Union filed a grievance, addressed to the

Step 2 Official, Department of Public Works, Fort Bragg. UX 3a & AX 4. By letter

dated April 5, 2021, the Union withdrew the grievance without explanation. UX 3b

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& AX 4. By letter dated April 16, 2021, addressed to the Deputy Garrison

Commander, US Army Garrison, Fort Bragg, the Union refiled the grievance. UX

3c & AX 4. The letter of April 16 is the grievance before the arbitrator.

The grievance states in pertinent part:

On 5 March 2021 the agency, more specifically …, Supervisor Supplies and

Services Branch provided [Grievant] a notice of decision on proposed
removal and offer of last change [sic]. The charges listed in the proposal were:
Conduct Unbecoming a Federal Employee, Absent Without leave (AWOL),
Lack of Candor, and Failure to Follow Proper Procedures. In the notice of
decision the agency replaced the removal action with a thirteen (13) days
suspension. In the notice of decision it is stated on page 2, "The effective date
of the unpaid suspension period will be from March 8, 2021 to March 20,
2019." It is clear in this instance that the agency failed to provide correct
information relative to the 13 day suspension and therefore this creates doubt
regarding the validity, and prudence of the suspension. It is the contention of
the Union that the decision rendered by the agency is harsh and does not
consider the factors of progressive disciple in addition to being untimely and
inaccurate by the very nature of the completely inaccurate suspension dates
information within the notice. It is the contention of the Union that the
discipline that he received is a direct result of unprofessionalism and disdains
towards [Grievant] from his immediate supervisor … in which he believes is
an effort to destroy his professional standing within the organization. It is the
belief of the Union that the discipline issued in this instance is absolutely
untimely, unjust, less than factual, and does not promote the efficiency of the
service. AX 4.

The relief requested is:

1. The Union and the employee be made whole

2. The 13 day suspension be expunged to include back pay.
3. All attorney fees associated with this grievance matter. Id.

“After the filing of the grievance, the Agency failed to set the grievance

meetings and the Union invoked arbitration on May 28, 2021.” Agency Brief @ 1;

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UX 3k. The matter remained dormant until the fall of 2021. Agency Brief @ 2.

On December 9, 2021, Grievant was given a Notice of Removal – Violation

of Last Chance Agreement, in which the Division Chief, Operations and

Maintenance, explained the reasons for Grievant’s termination:

1. On 12 March 2021, you signed a Last Chance Agreement (LCA), as an alternative

to Removal from federal service for Conduct Unbecoming a Federal Employee,
Absent Without Leave (AWOL), Lack of Candor, and Failure to Follow Proper
Procedures. The LCA required you to perform your official duties and prohibited
you from engaging in any misconduct at, or having a nexus to work prior to the end
of a two (2) year period. Unfortunately, you failed to comply with the LCA by failing
to follow proper leave procedures and being Absent Without Leave (AWOL) in that:

a. On or about 19 November 2021, you were not present for duty at the 07:00
HVAC Shop Meeting. You did not make contact with your Supervisor until
10:28, when you texted to state that you had overslept due to your medication.
You did not report for duty until 11:30, four and a half hours after the start of
your shift, and halfway through your duty day. You made no attempt to
provide your Supervisor the information necessary to support your request for
sick leave. Your request for sick leave was never approved.

b. On or about 7 September 2021, you sent a text to your Supervisor at 6:26

stating, "I'm going to be late, I have to take my daughter to school today."
You did not arrive at work until 10:00, 3 hours later. You said nothing to your
Supervisor upon arrival and offered no explanation until he directly asked you
why you took so long. You replied, "OH, I NEEDED to spend time with my
daughter!" Your Supervisor said, "That's what Annual Leave is for." Your
absence was not authorized and you never requested leave for that period.

c. On or about 30 August 2021, you texted your Supervisor at 06:43

informing that you would be late because you had to take your daughter to
school. You did not arrive to work until 10:30, three and a half hours and said
nothing to your Supervisor. Your absence was not authorized and you never
requested leave for that period.

2. Accordingly, it is my decision to remove you from your position of HVAC

Equipment Technician, WG-5306-10, effective 9 December 2021. Prior to close of

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business on 9 December 2021, you are required to turn-in any and all equipment,
clothing, and Civilian ID cards that were issued to you. UX 4 & AX 7. ■

Grievant had not filed a grievance over any of the incidents 1.a.-c. listed in the Notice

of Removal.

In an email dated February 8, 2022, the arbitrator was asked to hear the case.

The parties subsequently agreed upon a May 10, 2022 hearing date.

Article 40, Section 8 of the CBA calls for Pre Arbitration Submissions:

a. All Arbitrations. Not later than fourteen (14) days before the date of a
scheduled arbitration, the parties will exchange the following information: a
restatement of the issues the party wishes to have heard by the Arbitrator, a
list of expected witnesses with names and duty sections (supervisor’s name is
to be included for witnesses the Union wants the Agency to make available
on hearing day), a list of expected documentary exhibits. The parties agree
that it is desirable to clarify issue(s), identify the witnesses, make reasonable
stipulations of expected testimony and agree on joint exhibits where possible.
Therefore, the representatives for the parties will attempt to work out
stipulations on joint exhibits, stipulations of expected testimony, and seek to
reach a mutually acceptable statement of issue(s). If the parties were
unsuccessful, either party may ask the arbitrator to finalize issues, witnesses
and exhibits, to include stipulations before the hearing. JX 1 @ 73.

The Union made its submission on April 26, 2022, proposing the following

issues:

1. Whether the Last Chance Agreement signed by [Grievant] appropriately

waives his statutory due process rights and the disciplinary procedures
outlined in the Collective Bargaining Agreement? If not what shall be the
remedy
2. Whether the Agency violated [Grievant’s] statutory due process rights
when it removed [Grievant]. If so, what shall be the remedy?
3. Whether the Agency complied with the Collective Agreement when it
removed [Grievant]. If not, what shall be the remedy

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 4. Whether the Agency met the requirement of the Last Chance Agreement
and had just cause to remove [Grievant].

The Union submission included witness and exhibit lists.

On that same date, the Agency made its proposal of the issues:

On March 12, 2021, [Grievant], entered into a Last Chance Agreement (LCA)
with the Department of Public Works, Fort Bragg, replacing the proposed
removal action with a thirteen (13) days suspension and waiving his appeal
rights in exchange for a last opportunity to retain his employment. The LCA
clearly placed [Grievant] on notice of conduct requirements and that future
misconduct will lead to immediate removal without further notice or
additional due process. Moreover, [Grievant] expressly waived any and all
appeal rights if the Agency elects to remove him from violating any term of
the LCA.

On December 9, 2021, [Grievant] was removed from federal service for his
failure to follow leave procedures and being absent without leave, in violation
of the Last Chance Agreement.

The Agency similarly submitted witness and exhibit lists.

On May 4, 2022, a prehearing videoconference was held, at which counsel for

the parties requested that the arbitrator determine the issues presented. The next day,

the arbitrator responded as follows:

According to Lizzio v Department of the Army, 534 F3d 1376, 1379 (Fed Cir
2008), citing Link v Department of the Treasury, 51 F3d 1577, 1582 (Fed Cir
1995), Grievant bears the burden of prevailing by a preponderance of the
evidence on one of the following issues:

(1) Whether Grievant complied with the Last Chance Agreement;

(2) Whether the Agency breached the Last Chance Agreement; or
(3) Whether Grievant knowingly and voluntarily entered into the Last
Chance Agreement.

Although Lizzio involved a Merit Systems Protection Board review of agency action,

16
the Supreme Court has held that arbitrators are governed by the same standards as

the Merit Systems Protection Board in reviewing actions taken by agencies.

Cornelius v Nutt, 472 US 648, 660-661 (1985).

Following the prehearing videoconference, the Union submitted its exhibits.

On May 6, 2022, the Agency filed an Amended Pre-Arbitration Submission,

restating the issues:

1. Whether Grievant complied with the Last Chance Agreement;

2. Whether the Agency breached the Last Chance Agreement; or
3. Whether Grievant knowingly and voluntarily entered into the Last Chance
Agreement.

The Agency also added one witness and an additional document to its previous

submission.

On May 9, 2022, the Union submitted three additional exhibits.

On May 10, 2022, the Agency submitted its exhibits.

A videoconference hearing was held on May 10, 2022, with a court reporter.

The issues are those determined by the arbitrator on May 5, 2022, at the request of

counsel. The exhibits received into evidence are the following:

JX 1—Collective Bargaining Agreement, signed April 3, 2016

UX 1—Notice of Proposed Removal, November 25, 2020

UX 2—Notice of Decision on Proposed Removal and Offer of Last Chance

Agreement, March 3, 2021

UX 3a—Grievance, dated April 1, 2021

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UX 3b—Letter, dated April 5, 2021, withdrawing UX 3a

UX 3c—Grievance, dated April 16, 2021

UX 3d-j—Not used, TR @ 21

UX 3k—Invocation of arbitration, May 28, 2021

UX 4—Notice of Removal – Violation of Last Chance Agreement, December

9, 2021

UX 5—Last Chance Agreement, signed March 12, 2021

UX 6—New Leave Request, August-December, 2021

UX 7—Civilian Leave and Earnings Statement LES, Pay Period End 08/28/21

AX 1—Notice of Reprimand, July 11, 2019

AX 2—Notice of Proposed Removal, November 25, 2020

AX 3—Notice of Decision on Proposed Removal and Offer of Last Chance

Agreement, March 3, 2021

AX 4—Grievance package, April 1, 5 & 16, 2021

AX 5—Notice of Personnel Action, Effective Date 03-08-2021

AX 6—Table of Penalties for Various Actions

AX 7—Notice of Removal – Violation of Last Chance Agreement, December

9, 2021

AX 8a—Grievant’s ATAAPS Report for Pay Period 08/29/2021-09/11/2021

(TR @ 88, submitted with Brief)

AX 8b—Grievant’s ATAAPS Report for Pay Period 11/07/2021-11/20/2021

(TR @ 88, submitted with Brief)

18
 AX 8c—Grievant’s Master Time History for 11 20 21 and 09 11 21 (TR @
88, submitted with Brief)

AX 9—Grievant’s Labor History Report (TR @ 88, submitted with Brief) ■

On June 1, 2022, the arbitrator emailed counsel these instructions:

In the parties' respective briefs, they should clearly explain:

(a) Precisely what information Grievant recorded in the Automated Time And
Attendance Production System (ATAAPS), which is misidentified in the
transcript as ATAPS.
(b) What the Agency alleges he should have recorded.
(c) How he allegedly benefited from he did or didn't do.
(d) How the Agency was harmed by what he did or didn't do.

The parties emailed briefs to the arbitrator on June 27, 2022. Union counsel

made the following objection in his email:

The Union also would like to note an objection it made in its post-hearing
brief. The Arbitrator asked the following questions be answered in the briefs:

(a) Precisely what information Grievant recorded in the Automated Time And
Attendance Production System (ATAAPS), which is misidentified in the
transcript as ATAPS.

(b) What the Agency alleges he should have recorded.

(c) How he allegedly benefited from what he did or didn't do.

(d) How the Agency was harmed by what he did or didn't do.

The Union could not appropriately respond to those questions as the Agency
never provided the Union a copy of the ATAAPS documents it referred to at
the hearing. Accordingly, the Union objects to its inclusion if the Agency
provides a copy of the ATAAPS in its brief. However, if the Arbitrator allows
the documents, the Union requests an opportunity to provide a response brief
to respond to the documents.

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By email the next day, the arbitrator allowed the Union until July 14, 2022, to

respond to those issues and documents addressed in the Agency Brief. The Union

emailed its Response Brief to the arbitrator on July 12, 2022.

OPINION PART II. ANALYSIS OF GRIEVANT’S DEFENSES

Union counsel began his opening statement by describing the issues as

follows:

Mr. Arbitrator, the issues we are deciding at today's hearing is whether the
Grievant complied with the last chance agreement, whether the Agency
breached the last chance agreement, whether the Grievant knowingly and
voluntarily entered the last chance agreement. TR @ 3.

Accord Union Brief @ 2; Agency Brief @ 2.

PART II.A. Grievant’s Compliance with the Last Chance Agreement

Counsel proceeded to state that “[i]t is the position of the Union that the

Grievant complied with the last chance agreement,” a position with which the

arbitrator strongly disagrees. Union Brief @ 11 ff. To the contrary, Grievant appears

to have breached the LCA right out of the gate. In ¶ 5.b, he promised not to file any

grievance, and in ¶ 5.e, specifically any grievance over the 13-day suspension in ¶

4. The grievance sought back pay for the suspension, in violation of ¶ 5.e.

The grievance initially was filed April 1, only days after Grievant completed

the 13-day suspension on March 20, and on May 28, the Union demanded

arbitration, in violation of those same provisions. All the while, Grievant was

enjoying the benefits of his “bargain”. Although the filing of the grievance is

20
sufficient ground for affirming Grievant’s termination of employment, the Union

never addressed that issue in either its Brief or Response Brief.

The grievance seems to be based in large part on an obvious typographical

error concerning the dates of the suspension. Although the arbitrator simply cannot

believe that the typo actually caused anyone any confusion, the issue was moot

because Grievant had already served the 13-day suspension, and Grievant and the

Union clearly understood that the suspension was for 13 days, because they sought

back pay for precisely 13 days.

The allegation in the grievance that the Agency disregarded “the factors of

progressive discipline” is not supported by the record. First and foremost, the CBA

does not call for progressive discipline. Secondly, notwithstanding the fact that the

CBA does not expressly call for progressive discipline, the Agency addressed it in

Douglas Factors 7 & 12. UX 2. Finally, the Merit Systems Protection Board has

explained that settlement agreements with employees ARE a form of progressive

discipline. Alternative Discipline: Creative Solutions for Agencies to Effectively

Address Misconduct, Report of the Merit Systems Protection Board issued pursuant

to 5 USC § 1204(a)(3), July 2008 (“MSPB Report”),1 @ 38 (“Alternative Discipline

Counts as Progressive Discipline”). Thus, by offering Grievant the LCA, the Agency

1
https://www.mspb.gov/studies/studies/Alternative_Discipline_Creative_Solutions_for_
Agencies_ to_Effectively_Address_Employee_Misconduct_373026.pdf

21
exercised progressive discipline.

The grievance is more informative about what it does not say, than what it

does say. It does not complain that discipline was based upon incidents of

misconduct extending over almost six (6) months. It does not complain that the

Agency alone drafted the LCA. It does not complain that the Union was not

involved. It does not say that Grievant misunderstood the terms of the LCA. It does

not say that he signed the LCA under duress. It does not complain that the LCA

authorizes the Agency to remove him arbitrarily. It does not claim that the LCA

deprived or deprives him of any due process rights. In short, the grievance does not

assert most of the defenses that are now asserted before the arbitrator, even though

the grievance was filed shortly after Grievant signed the LCA, when its terms and

their implications would have been fresh in his mind.

PART II.B. The Lack of Union Involvement in the LCA Process

The MSPB Report states “that the agency is most often the party who drafts

the alternative discipline agreement.” MSPB Report @ 28. In the instant case, the

Union complains that it was not involved in drafting the LCA and that the Agency

dealt directly with Grievant, instead of going through it. TR @ 3; Union Brief @ 28-

29. In LCA ¶ 6.a, Grievant agreed that “[h]e has had the opportunity to review the

Agreement, and has also been offered the opportunity to consult a lawyer or other

person of his choosing about this Agreement before signing it.” On the sixth line

22
following that provision is a reference to “AFGE Local 1770”, so that if Grievant

actually read the LCA, which he admitted that he did (TR @ 77), he would have

seen the reference to the Union, from which he could have sought assistance. In ¶ 9,

he acknowledged reading and understanding the Agreement. Grievant was afforded

“seven (7) calendar days” in which to seek advice about signing the LCA. UX 2 &

AX 3. He simply failed to do so. TR @ 33, 76-77.

The Agency called as a witness a former Union President, whose testimony

the arbitrator gives great weight. TR @ 121-129. This former Union official held

various Union positions for 18 years and negotiated the CBA, JX 1. TR @ 122. He

now is a human resource specialist with Fort Bragg Civilian Advisory Center. TR

@ 121-122. He had no involvement in Grievant’s case. TR @ 128.

As a Union official, he negotiated 20 or more last chance agreements. TR @

122-123. Although he agreed that the last chance agreement process “is not a written

portion of the CBA, … it is a well-established past practice. And because it is a well-

established past practice that goes decades in duration, I would simply say it's a past

practice that has become an instrument as part of the CBA.” TR @ 123. “[T]ypically

when it’s presented to the employee, the employee will bring it to the Union for

assistance.” Id.

The following testimony by that former Union official explains what might

have happened had Grievant sought Union assistance during the week allotted for

23
him to ponder signing the LCA:

Q. [W]hen the employee brings … the last chance agreement to you … did you
negotiate the terms of that [last chance agreement] with the Agency?

A. On multiple occasions I did. And, essentially, you would look at terms such as
the duration of the [last change agreement] would be something that I would discuss
and negotiate with the Agency. Typically, if there were [last change agreements] that
were presented for two-year duration, I may ask the Agency to reduce the amount of
time the employee served under that [last change agreement]. …
[T]here would be times there would be language such as the Union waives its
right as part of the [last change agreement] and I would argue to have that stricken,
… because the employee can waive their own rights during the [last change
agreement] process, but the Union should be able to kind of defend and negotiate
rights that they may forego, such as [the Union] filing Union grievances.

Q. But if the employee does not come to you with the agreement, how are you aware
that he signed the agreement or he was even offered the agreement?

A. We wouldn't be aware in those instances, if the employee didn't present.

Q. So why would a[] [last change agreement] not automatically be sent to the Union
for negotiation?

A. [I]n disciplinary processes, first and foremost, the employee has a right to say,
"Yes, I want union representation," or to say, "No, I don't want to be represented by
the union," or choose to get an attorney if they choose to do so. So first and foremost,
we have to honor the employee's right. Secondly, in the process of discipline,
proposed disciplinary actions and decisions on discipline are not sent to the Union
automatically, they are presented to the employee. And [a last change agreement] …
is also presented to the employee when an offer is being made. TR @ 124-125;
edited by arbitrator for readability.

The current Union President testified as follows:

It is common practice that the individual of the LCA seeks help from the
Union and also to gain an understanding of what their rights and
responsibilities are … prior to entering into any such agreement.

Q. So the employees seek the help of the Union, correct?

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 A. In most instances, yes, ma'am.

Q. ... So if the employee does not seek the help of the Union, you're never
aware of the LCA, correct?

A. Only … when it is brought to the attention of the Union by the employee.

TR @ 34.

It clearly appears, and the arbitrator so finds, that the fault for the lack of

Union involvement in Grievant’s LCA process lies with Grievant himself, for not

seeking Union assistance prior to signing the LCA. It would serve no purpose to

speculate as to what might have transpired had he done so. He now must accept the

consequences of his inaction.

PART II.C. The Nature of a Last Chance Agreement

It is important to understand that a last chance agreement is not a weapon used

by employers to subjugate employees, but a valuable tool utilized in an effort to

reform and retain wayward ones. The Agency witness who has viewed the

agreements from both sides as former Union official and HR specialist explained

their nature:

Q. Now, what is your understanding of the last chance agreement?

A. Essentially, last chance agreements are constructed to give an employee an

opportunity to … save their job. The [last change agreements] are offered for
employees that … have shown they were a good employee at some point and the
Agency has invested training and time in that person and the Agency may want to
retain that employee without affecting a disciplinary action. So you're giving them
one last chance to behave is one way of looking at it.
But also on the other side of the house, the Union side of the house, it's a tool
that unions use. For a long period, since the '80s we have zero tolerance policy with

25
drug and alcohol use, Drug Free Workplace Act. Typically, those are zero tolerance
issues, so a union official may come on behalf of the employee and say, "Hey, this
employee had a lapse of judgment, made a poor mistake. It is not indicative of that
person's character." So a union may say, "Let's get a last chance agreement for this
employee instead of the removal action that's possibly going forward. Give them a
chance to try to save their own jobs or their own careers."
That's essentially what the last chance agreement does, it provides an
opportunity for the employee to change their behavior, conform with the standards.
And in exchange for that, agencies will typically look for a clause that says, "We
won't go through a lengthy process to remove you or prolong litigation in exchange
for this last chance."

Q. [D]o you see a mutual benefit out of the [last chance agreement]?

A. I do. … I am sure I have negotiated at least 20 or more, and I would say half of
those were based upon requests that initiated from the Union to allow an employee
a last chance. So I do see the mutual benefit. TR @ 126-127; edited by arbitrator
for readability.

As the Agency witness noted, part of the quid pro quo for an agency offering

a last chance agreement is a waiver of the employee’s rights to dispute removal. In

Grievant’s case, the Agency already had afforded Grievant the opportunity to

respond orally and in writing to the charges on which the LCA was predicated. UX

2 & AX 3. The MSPB explains agency reasoning:

[T]he appeals and grievance processes can be very time consuming and
frustrating. More than 40 percent of organizations reported that their agency
required a waiver of appeals rights as a condition of supervisors being able to
use alternative discipline … .

Waivers tend to be used the most when an action is held in abeyance. An

agency agrees not to implement the discipline yet, and the employee agrees
that future misconduct will result in the discipline taking effect. In exchange
for putting the action on hold, agencies typically require that the employee
agree to waive the right to grieve or appeal the action if it is later put into
effect. …

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 When we asked agencies what they thought were the advantages of alternative
discipline, most agencies mentioned the importance of reducing grievances
and appeals, particularly through the use of waivers. MSPB Report @ 32-33.

PART II.D. Grievant’s Waiver of Rights

The appeal rights Grievant waived are described in ¶ 5.d and ¶ 5.e of the LCA.

The Union claims that he did not waive his rights under the CBA because the waivers

do not expressly refer to it. TR @ 4; Union Brief @ 2, 7, 8, 9, 10, 27, 28 & 29. While

it is true that the waivers do not expressly refer to the CBA, they do specifically

cover rights to “all grievances, arbitrations”, which are available only under the

CBA. Thus, Grievant did waive his rights to the grievance and arbitration provisions

of the labor Agreement. ¶ 5.e.

The language of ¶ 5.d requires further discussion:

[T]he Employee expressly waives any actual or perceived due process rights,
including, but not limited to, any notice of a removal action or any opportunity
to respond to any removal action, should the Agency elect to remove the
Employee for violating the Last Chance Period.

It is important to note that, whatever the intent of this provision was, it has not been

enforced against Grievant. He was in fact given the Notice of Removal – Violation

of Last Chance Agreement, which explained his violations of the LCA. UX 4 & AX

7. Furthermore, in this arbitration, Grievant is being afforded his due process rights

to contest his alleged violation of the LCA.

Lizzio, supra, 534 F3d @ 1383, explained a grievant’s rights in this regard:

If, as a matter of law, an appellant may establish Board jurisdiction in the face

27
 of a last chance agreement by establishing that he or she did not breach the
agreement, it necessarily follows that, to be able to exercise that right, the
appellant must be told in what way he or she allegedly breached the
agreement. Otherwise, the appellant will not know what he or she has to prove
was not done. This is nothing more than what due process requires. See
Licausi v. Office of Pers. Mgmt., 350 F.3d 1359, 1363 n. 1 (Fed.Cir.2003)
(pointing out that both this court and the Board have recognized “the due
process principle that a person must be given notice of the charge on which
the action against him is based”). This principle applies when an employee is
charged with breach of a last chance agreement. Otherwise, an employee will
not be able to exercise his right to “overcome his waiver of appeal rights by
proving that he complied with the last chance agreement.” Link, 51 F.3d at
1582.

A previously mentioned, Lizzio is an MSPB case. The CBA offered Grievant

the choice of appealing to the MSPB or filing a grievance, and Grievant effectively

has opted to go the grievance route, albeit via a circuitous path. JX 1 @ 66-67,

Article 39, Section 6.a. The arbitrator has the same role as the MSPB would have

had. Cornelius v Nutt, supra.

PART II.E. The Agency’s Alleged Breach of the Last Chance Agreement

The Union charges that the Agency breached the LCA in several respects,

including acting in bad faith. Union Brief @ 6-11. Indeed, the Brief is replete with

aspersions about the Agency’s treatment of Grievant, which are unsupported by

evidence. There was no bad faith on the part of the Agency; to the contrary, the

Agency treated Grievant magnanimously in light of the serious misconduct he

committed. In AFGE Local 1045 and DVA Gulf Coast Veterans Health Center, 18-

1 ARB ¶ 7132, 2018 WL 2356372, 118 LRP 14879 (Arb 2018), the arbitrator upheld

28
termination of an employee who used a government vehicle for her own

convenience, without wrecking it. In this case, misuse of a government vehicle was

but one of Grievant’s numerous transgressions, yet the Agency showed him

leniency.

Another repeated allegation was that the Agency failed to investigate the

triggering events that precipitated Grievant’s termination:

The Agency did not do the simple task of investigating … the allegations prior
to removing [Grievant]. The Agency breached the LCA when it failed to
investigate and failed to provide [Grievant] an opportunity to refute the
allegations. Additionally, the allegations aren't timely as well … .

The Agency also breached the LCA as it said it will only remove [Grievant]
for significant misconduct. The LCA does not say for any misconduct, it says
only for significant misconduct. The three allegations do not amount to
significant misconduct. TR @ 5.

Union Brief @ 6-11. The Union asserts that “Article 38, Section 4 of the CBA

requires that the Agency perform an investigation before issuing any discipline. This

means … all disciplines, including LCAs, have to have an investigation.” TR @ 4;

Union Brief @ 7-10.

While agreeing that some investigation is required by due process, the

arbitrator is not convinced that an investigation must be conducted in accordance

with the collective bargaining agreement when a last chance agreement is alleged to

have been breached. Elkouri & Elkouri, How Arbitration Works (ABA/Bloomberg

BNA, 8th ed 2016) @ 15-54 has this to say on the subject:

29
 When considering whether there is just cause for discharge under such
agreements, arbitrators do not apply the same due process considerations or
procedural protections as under a normal discharge or disciplinary matter.260
260
Eaton Cutler-Hammer Corp., 110 LA 467, 470-71 (Franckiewicz, 1998) (a
last chance agreement typically defines what “just cause” will mean for the
particular employee involved) … .

Much of the Union’s argument in its Post-Hearing Submission dated June 27,

2022 (“Union Brief”) and in its Response Brief dated July 12, 2022 is based upon

an erroneous assumption that the CBA supplements Grievant’s rights under the

LCA. That assumption is incorrect because the LCA contains a zipper clause:

2. This Settlement Agreement (hereinafter referred to as the "Agreement")

constitutes the complete understanding between the parties and is binding
upon the all parties, their successors, and their representatives. No other terms,
promises, or agreements will have any force or effect unless reduced to
writing and signed by all parties to this Agreement. (Emphasis supplied).

Any such writing, of course, means one executed after the LCA is signed.

Case law further militates against the Union’s assumption regarding the

applicability of the CBA. In Bakers Union Factory, #326 v ITT Continental Baking

Co, 749 F2d 350 (6th Cir 1984), the Court held that an arbitrator is bound by the

terms of a last chance agreement and may not look to the collective bargaining

agreement for additional authority. The Court elaborated on its Bakers Union

holding in Tecnocap LLC v Graphic Communications Conference/International

Brotherhood of Teamsters Local 24M, 777 Fed Appx 804 *; 2019 US App LEXIS

18503 **; 2019 WL 2537816:

30
 The Union appealed, claiming that the controlling question was whether
Tecnocap had “just cause” to fire Witherow and that the district court erred
by holding that the LCA “vitiated” the CBA’s just-cause provision. But in
Bakers Union Factory No. 326 v. ITT Continental Baking Company, 749 F.2d
350, 354-55 (6th Cir. 1984), we held exactly that: we upheld a company’s
dismissal of an employee for violating his LCA, over the union’s resort to the
CBA, by explaining that “parties who reach a settlement [i.e., LCA] pursuant
to the terms of a collective bargaining agreement do not intend that an
arbitrator may amend the terms of the [LCA] settlement” and, therefore, “an
arbitrator to whom the dispute is submitted is bound by the terms of that
[LCA].” Similarly, in Ohio Edison Company v. Ohio Edison Joint Council,
947 F.2d 786, 787 (6th Cir. 1991), we considered an LCA in which the union
had negotiated an employee’s continued employment, coupled with
participation in a treatment program, but provided for dismissal if he failed to
attend treatment. When the arbitrator disregarded the LCA and reinstated the
employee despite the breach of the LCA, “because he viewed the discharge as
‘unreasonably harsh,’” we reiterated our Bakers Union holding that “last
chance agreements are binding in arbitration,” and we vacated the arbitration
award for failure to adhere to the LCA. Id. Thus, pursuant to our precedent,
an LCA can supersede a CBA’s just-cause provision.

More to the point, however, is that an LCA is an agreed-upon

predetermination of “just cause.” It is a concession by the employee (and the
union) that the employer already had “just cause” to discipline the employee,
who is thereafter on the grace of one “last chance” in exchange for a promise
of compliance, the violation of which all three agree will be “just cause” for
immediate discipline. See Voss Steel Employees Union v. Voss Steel Corp., 16
F.3d 1223 (6th Cir. 1994) (Table) (“Such an agreement is typically drawn
among the employer, the union . . . , and the employee who has violated a
work rule, thus subjecting himself to discipline (often immediate termination).
The employee is given ‘one last chance’ to correct his errant behavior, in
exchange for which he agrees to certain conditions[,] . . . [the] failure to live
up to [which] is [almost always] grounds for immediate dismissal, without the
opportunity to file a grievance. . . .”). By signing the LCA in this case, both
Witherow and the Union agreed that if Witherow had an unexcused absence
in the next eight months, Tecnocap would have “just cause” to fire him.
Tecnocap @ *806-808; **5-8; footnote omitted.

In light of this case law, the arbitrator does not have liberty to resort to the CBA, but

31
must abide by the LCA.

In United Food Workers Local 825 and Welch Foods, Inc, 07-1 ARB ¶ 3786,

2006 WL 6826841, 111 LRP 3978 (Arb 2006), the company offered the grievant

what was effectively a last chance agreement. The grievant then sought to apply for

a new position, a move that would have vitiated key provisions of the last chance

agreement. In denying the move, the arbitrator wrote in United Food Workers Local

825 and Welch Foods, Inc, 07-2 ARB ¶ 4042, 2007 WL 7566605, 109 LRP 33926

(Arb 2007):

Last chance agreements are to be strictly construed and enforced. Elkouri &
Elkouri, How Arbitration Works (ABA/BNA 6th ed 2003) @ 969-973. In
Bakers Union Factory v ITT Continental Baking Co, 749 F2d 350 (6th Cir
1984), a case discussed at length in Hill & Sinicropi, Evidence in Arbitration
(BNA 2nd ed 1987) @ 158-160, the Sixth Circuit ruled that an arbitrator has
no authority to disregard a settlement embodied by parties in a last chance
agreement. Thus the arbitrator has no choice except to enforce the LCA
according to its terms.

Even if the arbitrator were to apply the investigation provision of the CBA as

the Union urges, it would not help Grievant. The provision states:

Disciplinary action will be initiated only after investigation into the facts and
circumstances concerning the alleged misconduct. Managers are encouraged
to ask questions of Employees prior to issuing a disciplinary or adverse action
so they have the relevant facts to determine whether or not to proceed with
the action. An Employee, who, during questioning or examination in
connection with an investigation, reasonably believes that the investigation
may result in disciplinary action, has the right to a Union representative,
provided the Employee makes such a request. If the Employee elects to be
represented, further questioning of the Employee, if any, will be done in the
presence of the representative; provided, no unreasonable delay will occur.
JX 1 @ 63.

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Article 3, Section 7 likewise emphasizes the importance of asking the employee:

The Employer should remember that the Employee being investigated can be
a valuable source of information during any investigatory process. JX 1 @ 6.

The difficulty for Grievant is that his supervisor did attempt to get his side of

the story, but Grievant was uncooperative. TR @ 104 (“You don’t let me know

anything”), @ 105 (“you're not letting me know what's actually going on."), @ 112

(“failure to advise his supervisor … . It's lack of communication.”); Comments on

Douglas Factors 3 & 6 (AWOL), 10 (Conduct & Procedures). Just as Grievant failed

to seek advice from the Union before signing the LCA, he did not request Union

representation when questioned about his attendance, at a time when the LCA was

hanging over him. Again, Grievant failed to avail himself of assistance with his

defense, seemingly to his detriment.

The CBA’s requirement for an investigation does not set any standard for one.

The arbitrator finds that Grievant’s supervisor did conduct an investigation into

Grievant’s conduct over a period of months and prepared a report documenting his

findings, including documentation from Agency time records. TR @ 117; UX 4 &

AX 7. There was no requirement for the deciding official to conduct a further

investigation before issuing the Notice of Removal.

The Union’s complaints about timeliness do not help Grievant’s cause. When

Union counsel queried Grievant’s supervisor about the span of the three incidents

33
recited in the supervisor’s report, August 30—November 19, 2021, the supervisor

responded that he was “giving [Grievant] the benefit of the doubt” and that he

“probably had a heavy workload.” There was a shortage of supervisors, so

Grievant’s had to do double duty (“I had 60 guys that I was looking after before the

other supervisor got hired.”). UX 4; TR @ 115-118. When asked if any one of the

three incidents could have triggered the Last Chance Agreement, Grievant’s

supervisor answered, “Yes, sir.” TR @ 115. That being the case, it is clear that

Grievant benefited from any putative delay, because he could have been terminated

earlier.

As previously explained, Grievant has been afforded the opportunity to refute

the allegations of violating the LCA in this arbitration. The situation is analogous to

that of the petitioner in Lizzio, who was afforded the opportunity to prove one or

more of the accepted defenses to enforcement of a last chance agreement, before the

MSPB. In attempting to defend Grievant, the Union asserts that “[t]he three

allegations do not amount to significant misconduct,” but the LCA defines

“significant misconduct” to include “absence without leave (AWOL) … and failure

to follow proper procedures”, which are the triggering grounds stated in the Notice

of Removal.

In Gonzales v Department of the Air Force, 38 MSPR 162, 167; 1988 MSPB

LEXIS 1641, **9-10 (1988), the Board rejected a de minimus argument:

34
 [W]e reject the appellant's argument that removal is an abuse of the agency's
discretion or too harsh a penalty for the charged AWOL of one hour. The
subsequent misconduct was merely the event which triggered reinstatement
of the suspended removal action, which the agency had already found
warranted based on his previous misconduct. In addition, the agreement by its
very language supports the finding that the appellant waived his right to appeal
to the Board, not only the original removal action, but also the subsequent
disciplinary action taken against him by the agency during the agreed-upon
one-year probationary period. (Emphasis supplied).

The arbitrator finds that the Agency did not violate the LCA. It terminated

Grievant not for the triggering events, but for the transgressions upon which the LCA

was based. Lizzio, supra, 534 F3d @ 1383-1385.

PART II.F. Inaccuracies in the Agency’s Notice of Removal

The Union rightly points out that there are several inaccuracies in the Notice

of Removal – Violation of Last Chance Agreement issued to Grievant on December

9, 2021. UX 4 & AX 7. The first thing to note is that the Agency concedes that the

incident described in ¶ 1.a no longer presents an issue:

On November 19, 2021, Grievant recorded four and a half (4.30) hours of
regular time (RF) and four and a half (4.30) hours of sick leave (LS) … For
the November 19, 2021, incident, Grievant properly recorded his leave and
attendance and was paid accordingly. Grievant concurred and [his supervisor]
certified the attendance record. AG Ex. 8 Agency Brief @ 4.

Thus, only the incidents described in ¶¶ 1.b and 1.c need be addressed. The

statements that Grievant never requested leave for his absence on September 7, 2021

(¶ 1.b) and that on August 30, 2021 (¶ 1.c) are incorrect, as shown by UX 6 and as

conceded by the Agency in its Brief @ 4:

35
 For the August 30, 2021, and the September 7, 2021 incidents, Grievant
should have recorded three and a half (3.30) hours of annual leave (LA) on
August 30, 2021, and three (3.00) hours of annual leave (LA) on September
7, 2021. Although Grievant submitted leave requests for both days, he did not
adjust the prepopulated default hours to show annual leave (LA). Grievant had
to go to ATAAPS and put a dropdown in for his annual leave. His requests
for leave were submitted but not approved; Grievant had the obligation to
follow up and update the information in ATAAPS.

In the face of these errors, the Agency went on to discuss the remaining two

incidents as follows:

The Automated Time and Attendance Production System (ATAAPS) is set up

to prepopulate defaults, which means time will automatically input Regular,
First Shift (RF) and Holiday Leave (LH) for Wage Grade (WG) employees.
When the employee requests leave, he must submit a leave request in the
system and adjust the prepopulated default hours to reflect the requested hours
for the pay cycle. According to the attached reports, Grievant worked nine (9)
hours regular time (RF) on August 30, 2021, and nine (9) hours regular time
(RF) on September 7, 2021. Although Grievant requested three (3) hours of
annual leave (LA) for August 30, 2021, and three and a half (3.30) hours on
September 7, 2021, he did not adjust the prepopulated default hours to show
annual leave (LA). Agency Brief @ 4.

Grievant got paid for the prepopulated default hours (RF) and (LH) for the
pay period ending September 11, 2021. He did not adjust the hours to reflect
his requested annual leave hours. The record shows no leave concurrence AG
Ex. 8a. It also shows Grievant reviewed the record multiple times -09/08/21,
10/21/21 and 12/10/2021- but took no action to correct the prepopulated
default hours and seek approval of his requested leave. AG Ex. 9 Grievant
testified he has concurred that he took leave those days, including the eight-
hour holiday leave and was charged for it. He also asserts he was charged for
the leave hours and has the Leave and Earning Statement (LES) to prove it.
Tr. at 85-86. However, he has not produced copy of his LES for that pay
period to verify the leave hours used. As of this date the record clearly shows
regular time, no leave hours were approved nor deducted from his accrued
leave balance.

The Agency’s records reflect Grievant did not follow the proper procedures

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 for recording and processing his annual leave for the pay period beginning
August 30, 2021 and ending on September 10, 2021. …

Although, Grievant submitted a leave request for the time in question, he did
not follow the proper procedures to ensure his leave was properly recorded
and approved. An unapproved leave is an unauthorized absence. Grievant has
been counseled multiple times about attendance and proper leave
requests/reporting procedures. However, he has a track record and continues
to fail to follow the proper procedures, which leads us to believe he is
intentionally defrauding the government. Agency Brief @ 5.

The Union’s defense is that Grievant did not make corrections to his time

records because he was awaiting the Agency’s responses to his requests for leave.

Response Brief @ 2, 4, 5 & 7. The difficulty with this explanation is that it is not

born out by the record; Grievant did not testify to that effect. TR @ 43-92.

Moreover, a purported wait of months for a simple yes or no answer about leave is

not reasonable. No response is a negative answer. UX 2, Douglas Factor 1 Comment

(“An unapproved leave form is an un authorized absence.”). Grievant’s lack of good

faith in the matter is demonstrated by his failure to correct his time records when he

reviewed them on 09/08/21 and 10/21/21. AX 9; Agency Brief @ 5.

Another shortcoming in the Union’s Response Brief is a failure to specifically

rebut the exhibits attached to the Agency Brief, AX 8a-c and AX 9. The Union

requested extra time “to provide a response brief to respond to the documents,” yet

never referenced any of them in its Response Brief. Moreover, as the Agency points

out in its Brief @ 5, Grievant never produced the document he claims would show

that he was charged with annual leave. TR @ 86 (“Well, I do have the correct one.

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We can submit that at a later date if the arbitrator is willing to accept that.”).

The difficult question regarding inaccuracies in the Agency’s Notice of

Removal is whether they are sufficient to render the Notice inadequate. What

remains viable in the Notice of Removal are charges of AWOL and failure to follow

proper procedures on two occasions. There is insufficient evidence about the

Agency’s AWOL procedures for the arbitrator to rule on them, and the Agency

seems to emphasize Grievant’s failures to follow proper procedures in its Brief @ 6.

Although Russo v US Postal Service, 284 F3d 1304, 1310 (Fed Cir 2002) is

not directly on point, because it did not concern a last chance agreement, at least it

stands for the proposition that an agency need not prevail on all issues to impose

discipline:

We have stated that "[w]hen the Board sustains fewer than all of the agency's
charges, the Board may mitigate to the maximum reasonable penalty so long
as the agency has not indicated either in its final decision or during
proceedings before the Board that it desires that a lesser penalty be imposed
on fewer charges." Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999).
(Emphasis supplied).

Thus, even though the Agency erred in aspects of its Notice of Removal, there

remain accusations and evidence of Grievant’s failure to follow proper procedures,

a transgression explicitly covered by ¶ 5.c of the LCA. As in Gonzales v Air Force,

supra, even a single misstep can trigger the discipline being held in suspense under

the LCA. That is what the LCA contract says.

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 PART II.G. Grievant Knowingly and Voluntarily Entered into the LCA

The Union pleads that Grievant “signed an agreement to save his job. While

he disagreed with the reasons for the LCA, he wanted to ensure that he kept his job.”

TR @ 4. Such a lamentation was unpersuasive in Gonzales v Air Force, 38 MSPR

@ 166; 1988 MSPB LEXIS @ **6, n 3 (“[T]he appellant argues that he signed the

agreement because he had a family to support and his only concern was to keep his

job.”).

It is important to understand that Grievant was not forced to sign the LCA. If

he disagreed with the reasons for it, he could have filed a grievance and proceeded

to arbitration should the grievance have been denied, or he could have turned to the

MSPB for relief. If his efforts failed in arbitration or before the MSPB, he could

have appealed to the Federal Circuit. How Arbitration Works, supra, @ 20-39.

Grievant had options other than acceding to the LCA.

To the extent Grievant now claims that he did not fully understand the terms

or operation of the LCA, he could have hired an attorney or sought assistance from

the Union before signing. But he did not. Instead, he did nothing to help himself. It

is noteworthy that, in the grievance filed shortly after he signed the LCA, nothing is

said about any misunderstanding. Thus, it is difficult for the arbitrator to find fault

with anyone or anything except Grievant himself.

The situation before the arbitrator is much like that in Gonzales v Air Force,

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38 MSPR @ 166; 1988 MSPB LEXIS @ **6:

[T]here was no evidence in the record that the execution of the agreement was
in any way the result of duress or bad faith negotiation on the agency's part.
We also note that the appellant did not present any evidence of duress or bad
faith with his petition for review. Moreover, the fact that the appellant was
faced with an unpleasant choice does not of itself negate the presumed
voluntariness of his decision to execute the agreement. See, Christie v. United
States, 518 F.2d 584, 587-88 (Ct. Cl. 1975). Thus, we find no error in the
administrative judge's finding that the appellant knowingly and intentionally
waived his appeal rights when he executed the agreement. (Footnote omitted).

PART III. There Is a Mistake of Law in the CBA Appeal Provision

Article 40, Section 12 provides:

The arbitrator’s award is binding on the parties except that either party may
file exceptions to the award with the Federal Labor Relations Authority
(FLRA) for review under regulations of the Authority. JX 1 @ 74.

In a previous arbitration, the arbitrator pointed out that this is not a correct statement

of appellate procedures; in this case, the arbitrator’s decision may be appealed to

only the Federal Circuit Court of Appeals, not the FLRA. Fed Education Ass’n-SR

and US DoD Domestic Dependent Elementary and Secondary Schools, 20-1 ARB ¶

7599, 2020 WL 1491488, 120 LRP 9634 (Arb 2020).

The chart in How Arbitration Works, supra, @ 20-39–20-40, shows that the

quoted provision in the CBA is incorrect in part; arbitration awards in Category II—

which includes reduction in grade or removal for unacceptable performance;

removal; suspension for more than 14 days; reduction in grade or pay; furlough of

30 days or less—may be appealed to only the Federal Circuit.

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 Footnote c @ 20–40 states:

For Category II issues, the arbitrator is governed by the same criteria and
standards that would govern the MSPB. See 5 U.S.C. §§7121(e)(2),
7701(c)(1) & (2). Under 28 U.S.C. §1295(a)(9), the U.S. Court of Appeals for
the Federal Circuit, which was established in 1982 with jurisdiction limited
by subject matter but not by geography, has “exclusive” jurisdiction to review
MSPB decisions. By 5 U.S.C. §7121(f), arbitration decisions in Category II
cases are subject to review “in the same manner and under the same conditions
as if the matter had been decided by the MSPB; thus, the court has exclusive
jurisdiction to review arbitration decisions. (Emphasis supplied).

See also Richardson v US Customs Service, 47 F3d 415, 418 (Fed Cir 1995) (“the

exclusive forum for appeal is this court”).

This error affects not only the Union and its members, but also the Agency,

because the Agency can appeal, too (“either party”). Delay caused by an erroneous

filing could lead to expiration of the appeal period. Graviss v DoD DDESS, 841 F3d

1362 (Fed Cir 2016); dismissed for lack of jurisdiction, 898 F3d 1222 (Fed Cir

2018); cert den, 139 S Ct 2616; 204 L Ed 2d 265 (2019). It also could lead to an

award of costs and attorney fees, as the law is settled. The error in the CBA

constitutes a mutual mistake requiring the document to be reformed. How

Arbitration Works, supra, Ch 9.2.A.ii. However, as in Fed Education Ass’n, the

arbitrator leaves correction to the parties.

PART IV. Conclusion and Award

Having reviewed the transcript and exhibits and having read the parties’ briefs

and having researched last chance agreements and other legal issues, the arbitrator

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concludes that Grievant has been afforded all the process he is due but has failed to

carry his burden of proof. Therefore, Grievant’s termination for breach of the Last

Chance Agreement is upheld.

_________________________________
E. Frank Cornelius, PhD, JD, Arbitrator

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