FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 22-09530

FMCS No. 22-09526
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES LOCAL 573,
Union,

and

FEDERAL BUREAU OF PRISONS,

Agency.

_____________________________________________/

OPINION OF THE ARBITRATOR

December 27, 2023

After a Hearing Held October 11-12, 2023

In Aliceville, Alabama

For the Union: For the Agency:

Jessica B. Clarke Marisa Nash
Assistant General Counsel Assistant General Counsel
American Federation of Government Employees Federal Bureau of Prisons
80 F Street, NW 200 Chestnut Street, 7th Fl
Washington, DC 20001 Philadelphia, PA 19106
 BACKGROUND

These two cases arose out of the same incident at the Federal Correctional

Institution for women in Aliceville, Alabama. TR @ 139. The cases were

consolidated for efficiency. TR @ 8. A hearing was held at the prison October 11-

12, 2023, in which evidence in both cases was presented together at the same

hearing. TR @ 8-9; Union Brief @ 1. The facts are essentially undisputed. The key

incidents were recorded on prison videotape, and Grievants admit their actions and

omissions. At the election of the parties, briefing was set for December 15, 2023.

TR @ 200-201.

The facts and the Agency cases are described in an OIA Investigative Report

prepared by Lieutenant BL in OIA Case No. 2021-08582, which he signed and dated

March 17, 2022. UX 2 (“Report”). The arbitrator has edited excerpts from the

Report. The Executive Summary states:

On September 13, 2021, Warden CG reported staff misconduct to the Office

of Internal Affairs against a female Correctional Officer (“female Grievant”)
and a male Correctional Officer (“male Grievant”). Specifically, in a
memorandum submitted by Lt. DD, it was reported that the female Grievant
failed to place restraints on inmates prior to opening the cell door in the
Special Housing Unit.

The investigation revealed sufficient evidence to sustain the allegations of

Inattention to Duty, Breach of Security and Failure to Follow Policy against
the female Grievant and Inattention to Duty against the male Grievant.

The investigation revealed insufficient evidence to sustain the allegation of

Failure to Follow Policy against the male Grievant.

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The Special Housing Unit (“SPU”) is for problem prisoners. TR @ 24, 26

(“sometimes dangerous inmates”), 140. The Report continues:

This complaint was referred to the Office of Internal Affairs (OIA) on

September 13, 2021, for review and classification. OIA deferred the matter to
FCI Aliceville on September 21, 2021, for local investigation.

Two prison rules are quoted in the Report, that are alleged to have been

violated:

Program Statement 3420.11, Standards of Employee Conduct, states in

pertinent part:

6. RESPONSIVENESS:

Inattention to duty in a correctional environment can result in escapes,

assaults, and other incidents. Employees are required to remain fully alert and
attentive during duty hours. …

Standards of Employee Conduct, Standard Schedule of Disciplinary Offenses

and Penalties, identifies a breach of security as a violation of the Standards of
Employee Conduct.

Special Housing Unit Post orders states in pertinent part:

Page #4. RESTRAINTS

All inmates will be restrained in handcuffs when removed from a secured area
that allows direct contact with staff. Handcuffs will be applied behind the
inmates' back, with the inmates' palms facing out and thumbs upward, and
double-locked. Handcuffs will be applied securely and double locked.

The Factual Information on which the Report was based is set forth on page

three:

Lt. DD stated on September 11, 2021, he was contacted by Acting Lt. WT

about CCTV footage WT was reviewing. DD stated after reviewing the …
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CCTV footage for SHU camera 169 for September 8, 2021, time 10:32 p.m.
he observed female Grievant unsecure a cell door occupied by two inmates.
DD stated he observed the inmates were not placed in hand restraints prior to
the door being opened. DD stated he observed the female Grievant place
cleaning supplies and a mattress in the cell. DD stated the staff member
opening the grill … was the male Grievant.

Acting Lt. WT stated he was assisting with the operational review. WT stated
after reviewing Camera 169 in Special Housing he observed a cell door being
opened without the staff placing the inmates in restraints. WT stated he
notified DD of the incident and provided a memo.

The male Grievant stated he was assigned as the SHU number two officer on
September 8, 2021. He stated from looking at the video he believed it was
time to count prisoners and the female Grievant was passing out cleaning
supplies. The male Grievant stated she did not tell him she was going to place
the mattress in a cell with inmates. The male Grievant stated he did not
observe her cuff any inmates … before the cell door was opened. He stated he
was unable to determine if the cell was occupied by any inmates. He stated if
he would have known the cell she opened had inmates in it, he would have
reported it to his supervisor.

The female Grievant stated on September 8, 2021, she was assigned as the
SHU Officer in Charge. She stated she was the only female staff member in
the unit. She stated that when she initially placed the inmates in the cell,
restraints were applied. She stated the male Grievant counted with her at 10:00
p.m. She stated no, she did not restrain the inmates when passing in the
supplies. She stated she advised the inmates to step to the back of the cell
while she passed in supplies. She stated there was not enough staff to cuff the
inmates and open the door at the same time. She stated she has reviewed the
post orders for Special Housing. She stated she has completed the SHU
quarterly training. She stated she did not recall telling the male Grievant she
was going to pass out the supplies. She stated he counted with her and she can
only assume he was aware the cell was occupied by two inmates.

Lt. BL reviewed the Special Housing Unit CCTV footage from … Camera
169. The review revealed the following:

• 9:32 p.m. an inmate was placed in cell with another inmate both inmates
were restrained
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 • 9:33 p.m. both inmates were taken out of restraints
• 10:01 p.m. the female Grievant counts the inmates and places door tag on
the inmates’ cell door.
• 10:03 p.m. the male Grievant conducts count on range.
• 10:32 p.m. the female Grievant begins passing out cleaning supplies
• 10:33 p.m. the female Grievant opens the cell door without restraining the
inmates and passes in a mattress and spray bottle.

Lt. BL, the author of the Report in OIA Case No. 2021-08582, reached the

following conclusions:

The local investigation revealed sufficient evidence to sustain the allegations

of Inattention to Duty, Breach of Security and Failure to Follow Policy against
the female Grievant and Inattention to Duty against the male Grievant.

DD and WT stated they observed CCTV footage from SHU camera 169
showing the female Grievant open a cell door without placing the inmates in
restraints. This was supported by the male Grievant’s statement stating he did
not observe the female Grievant place restraints on any inmates … . The
female Grievant admitted to not restraining the inmates and instructing them
to step to the back of the cell when she handed in the supplies. A review of
the CCTV footage of SHU camera 169, conducted by BL revealed the male
Grievant conducted count … at 10:03 p.m. directly following the female
Grievant placing the door tag on the cell door. The review further revealed at
approximately 10:32 p.m., the male Grievant opening the … grill and directly
observing the female Grievant opening the cell door without restraining any
inmates. Accordingly, the allegations of Inattention to Duty, Breach of
Security, and Failure to Follow Policy against the female Grievant and
Inattention to Duty against the male Grievant are sustained. Accordingly, the
allegation of Failure to Follow Policy against the male Grievant is not
sustained. UX 2. ■

THESE ARE NOT ADVERSE ACTION CASES

The female Grievant received a 6-day suspension, and the male Grievant

received a 2-day suspension. JX 5, JX 10. At the hearing, the Agency on occasion

made the point that the disciplinary actions taken against Grievants were not adverse
5
actions taken pursuant to 5 USC § 7512, but rather were disciplinary actions taken

pursuant to 5 USC § 7503. TR @ 90-91, 148-149. Specifically, the Master

Agreement, Federal Bureau of Prisons and Council of Prison Locals, American

Federation of Government Employees (JX 1 or “CBA”), Article 30, Section b

provides:

Disciplinary actions are defined as written reprimands or suspensions of

fourteen (14) days or less.

Adverse actions are defined as removals, suspensions of more than fourteen

(14) days, reductions in grade or pay, or furloughs of thirty (30) days or less.
JX 1 @ 70.

The arbitrator discussed the difference between the actions in detail in AFGE

and US Army Headquarters, XVIII Airborne, 2002 WL 34716503, 103 FLRR-2 33,

102 LRP 34100, *3-*4, 103 FLRR-2 81, 103 LRP 812, *3-*5 (Arb 2002); exceptions

den, 58 FLRA 156, 103 FLRR-1 14, 102 LRP 31624 (2002):

From the arbitrator’s perspective, any confusion stems from a failure to

distinguish between serious disciplinary action (adverse action) taken
pursuant to 5 USC § 7512, as in Cornelius v Nutt, 472 US 648 (1985), and
that taken pursuant to 5 USC § 7503, which provides:

(a) Under regulations prescribed by the Office of Personnel

Management, an employee may be suspended for 14 days or less for
such cause as will promote the efficiency of the service … .

(b) An employee against whom a suspension for 14 days or less is

proposed is entitled to -

(1) an advance written notice stating the specific reasons for

the proposed action;

6
 (2) a reasonable time to answer orally and in writing and to
furnish affidavits and other documentary evidence in support of
the answer;

(3) be represented by an attorney or other representative; and

(4) a written decision and the specific reasons therefor at the

earliest practicable date.

(c) Copies of the notice of proposed action, the answer of the

employee if written, a summary thereof if made orally, the notice of
decision and reasons therefor, and any order effecting the suspension,
together with any supporting material, shall be maintained by the
agency and shall be furnished to the Merit Systems Protection Board
upon its request and to the employee affected upon the employee's
request.

All cases and regulations cited by the parties, including Cornelius v Nutt, arose
under 5 USC § 7512, whereas the instant case arose under 5 USC § 7503 … .
Cases arising under the former may be appealed to the Merit Systems
Protection Board or pursued through arbitration under 5 USC § 7701, whereas
cases arising under the latter may be pursued only through arbitration and
thence to the Federal Labor Relations Authority under 5 USC § 7122. See
generally Elkouri & Elkouri, [How Arbitration Works (Bloomberg BNA 8th
ed 2016) @ 20-39─20-40].

In US Dept of Justice, Fed Bur of Prisons, Fed Correctional Inst,

Cumberland, Maryland and AFGE, Council of Prisons Local 4010, 53 FLRA
No. 38 (1997), the FLRA explained the scope of review as follows:

5 U.S.C. § 7503(a) states: "Under regulations prescribed by the Office

of Personnel Management [OPM], an employee may be suspended for
14 days or less for such cause as will promote the efficiency of the
service . . . ." (Emphasis added.) The underscored language is not
defined in 5 U.S.C. chapter 75, in the legislative history to 5 U.S.C.
chapter 75, or in OPM's regulations. See 5 U.S.C. § 7501; S. Rep. No.
95-969, at 47 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2769; 5
C.F.R. § 752.101, 752.201-752.203. In addition, the MSPB has not
interpreted the underscored language because suspensions of 14 days
or less are not appealable to it. See Pugh v. U.S. Postal Service, 55
7
 MSPR 32, 34 n.2 (1992); 5 C.F.R. § 1201.3(a). Such suspensions, as
relevant here, are appealable only through grievance and arbitration
procedures negotiated under section 7121 of the Statute. See 5 C.F.R.
§ 752.203(f).

Under Authority precedent, arbitrators are not required to apply a

particular standard or burden of proof in reviewing disciplinary action
taken under section 7503(a). E.g., U.S. Department of Justice,
Immigration and Naturalization Service, New York District Office and
American Federation of Government Employees, Immigration and
Naturalization Service Council, Local 1917, 42 FLRA 650, 655 (1991).
In addition, contrary to the Activity's assertion, arbitrators need not
apply section 7503(a) in the same manner that the MSPB applies 5
U.S.C. § 7513. See National Air Traffic Controllers Association,
MEBA/NMU and U.S. Department of Transportation, Federal Aviation
Administration, Memphis, Tennessee, 52 FLRA 787, 791-92 (1996).

As the Activity points out, the effect of Authority precedent is to give

arbitrators the same broad discretion to interpret and apply section
7503(a) that they have to interpret and apply collective bargaining
agreement provisions. See, e.g., American Federation of Government
Employees, Local 1760 and Social Security Administration,
Northeastern Program Service Center, 22 FLRA 195, 198 (1986)
(stating that contractual "just cause" provision "constituted the parties'
capsulation of [section 7503(a)]" and that arbitrator's contract analysis,
therefore, disposed of the section 7503(a) issue).

The clear implication of the FLRA’s precedents is that an arbitrator reviewing

an agency’s disciplinary action under 5 USC § 7503 need not apply any
“harmful-error” rule of the type he would be required to apply to an action
under 5 USC § 7512. Cornelius v Nutt, supra, 472 US @ 660-661. ■

Based upon the foregoing discussion, the arbitrator affords Grievants de novo

hearings on law and fact and holds the Agency to the preponderance standard. TR

@ 9. Army Airborne, supra, 102 LRP 34100, *3; 103 LRP 812, *3; AFGE Local

1658 and Army Tank-Automotive Command, 11-2 ARB ¶ 5361, *5; 2011 WL

8
7637774, 111 LRP 61232 (Arb 2011); Department of the Army, 2022 BL 491695,

*38-*39, 2022 BNA LA 626 (Kininmonth Arb 2023). This comports with the

Union’s position. Union Brief @ 7. The deference due the Agency’s determination

of the appropriate penalties, if any, is addressed infra.

WHETHER JUSTICE WAS DELAYED AND HENCE DENIED

IN THESE CASES

Grievants complain that the investigation and discipline processes took so

long as to constitute violations of Article 30, Section d of the CBA:

Recognizing that the circumstances and complexities of individual cases will

vary, the parties endorse the concept of timely disposition of investigations
and disciplinary/adverse actions. JX 1 @ 70; emphasis supplied.

Union Brief @ 11-21. See also 5 USC § 7503(b)(4) (“a written decision and the

specific reasons therefor at the earliest practicable date”), and CBA, Article 31,

Section a (“expeditious procedure covering all grievances properly grievable under

5 USC 7121”); emphasis supplied.

The events at issue took place on September 8, 2021, and the Agency became

aware of them on September 11, 2021. The written decisions and the specific reasons

therefor required by 5 USC § 7503(b)(4) were not rendered until September 15,

2022, over a year later. JX 5, JX 10. In the course of the administrative proceedings,

a new warden was assigned to FCI Aliceville, who continued the proceedings. TR

@ 15, 137-138. Henceforth, the term Warden refers to the new warden, unless the

context requires otherwise.

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 The Union President submitted two memoranda to the Warden on behalf of

Grievants, one on behalf of the male Grievant, dated August 2, 2022, and a second

on behalf of the female Grievant, dated August 11, 2022. JX 9, JX 3. Both contained

very similar arguments. In the latter Memorandum, the Union President quoted from

Federal Bureau of Prisons and AFGE Local No. 3690, FMCS No. 08-00539

(Hoffman Arb October 16, 2009),1 in which the arbitrator addressed the issue of

timeliness:

1. In Arbitrator Robert B. Hoffman's ruling, the issue of "timely disposition"

(of investigations) is a critical factor of due process of law deriving from the
United States Constitution. This principle of "labor relations due process
includes a variety of protections meant to assure that the investigatory and
disciplinary process is fair and reasonable," (page 10, Hoffman) Citing the
ABA's Section of Labor and Employment law. Arbitrator Hoffman concludes
that "a delay in imposing discipline is clearly a due violation of due process:

2. Discipline based on stale offenses is disfavored for a number of reasons. As

time passes, memories fade, witnesses depart, and records are discarded. The
reliability of the evidence diminishes as the interval from the alleged
misconduct increases. Likewise, it becomes more difficult for the accused
employee to recall or reconstruct events and to marshal evidence in his own
behalf as the underlying events becomes more remote in time. Finally, the gap
between the occurrence and the discipline not only represents an additional
investment of the employee's finite years of work life into the enterprise, but
also counters any inference that the individual is an unacceptable employee,
at least where no other discipline has been issued in the interim." (Page 12,
Hoffman) In addition, the arbitrator states that the Master Agreement signifies
why promptness or timeliness is significant to the parties, for in Article 30
they agree that when employees are disciplined progressively, the intent is "to
correct and improve employee behavior". Discipline then is what these parties

1
109 LRP 70605, 2009 WL 10823351 (Hoffman Arb 2009); slip opinion available at
https://www.afge.org/contentassets/e023a6350c2b4b9e93b60b277a49c2b1/suspension-untimely-
discipline--leichtman--miami.pdf
10
 use to help the employee overcome any conduct or performance deficiency,
for in so doing both the employee and the Agency benefit. JX 3.

In Sihota v Internal Revenue Service, 908 F3d 1284, 1291 (Fed Cir 2018), the

Federal Circuit similarly noted the importance of timeliness:

"The lapse of time carries with it the memory and life of witnesses, the
muniments of evidence, and other means of proof." Costello, 365 U.S. at 282,
81 S.Ct. 534 (quoting Brown v. Cty. of Buena Vista, 95 U.S. 157, 161, 24
L.Ed. 422 (1877)).

The Hoffman arbitration concerned traffic tickets. The instant case involves

serious disregard of prison security. Under the facts of this case, the arbitrator is not

persuaded that the delay in rendering the decisions on discipline should be given

great weight. A compelling reason is that Grievants do not complain of any actual

prejudice caused by the lapse of time. Moreover, the evidence is on videotape, and

in affidavits taken not long after the operative events. In those affidavits, Grievants

were afforded the opportunity to give their version of events, and they admitted the

essential facts.

The Union agrees that the facts are very simple. Union Brief @ 13 (“the

simplistic facts of the instant case”). Given well preserved, simple facts, it is difficult

to give much weight to delay, especially when the case concerns prison security.

AFGE Local 614 and Federal Bureau of Prisons, 2023 BNA LA 284, 23-2 ARB ¶

8277, 2023 WL 6411050, 2023 BL 358602, 123 LRP 30229 (Arb 2023) (“the

Warden made institutional security his primary concern”).

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 In an affidavit dated 9-22-2021, the female Grievant stated:

¶ 7. I was assigned as the SHU OIC [Officer in Charge] on September 8,

2021.

¶ 8. I was making rounds … and passing out cleaning supplies.

¶ 9. I was aware the cell was occupied by two inmates.

¶ 10. I was still trying to complete my other duties. The inmate came in the
unit right before the 10:00 pm count.

¶ 11. I was the only female assigned to SHU at the time.

¶ 12. I do not have any additional information to add to this statement related
to the investigation. UX 1.

In a subsequent affidavit dated 10-20-2021, the female Grievant elaborated on

her earlier statements:

¶ 7. On September 08, 2021, I was assigned as the SHU OIC.

¶ 8. I was the only other female staff in the unit.

¶ 9. Initially placing them in the cell yes we applied restraints.

¶ 10. Yes [the male Grievant] count with me at 10:00 pm.

¶ 11. No I did not restrain the inmates when passing in the supplies. I advised
them to step back while I passed in the supplies.

¶ 12. There was not enough staff to cuff the inmates and open the door at the
same time.

¶ 13. I have reviewed the post orders for the special housing unit.

¶ 14. I have completed the SHU quarterly training.

¶ 15. I do not recall telling [the male Grievant] I was going to pass out the
12
 supplies.

¶ 16. He counted with me I assume he was aware the cell was occupied by
two inmates.

¶ 17. I do not have any additional information to add to this statement related
to the investigation. AX 3.

In an affidavit dated 9-23-2021, the male Grievant stated:

¶ 7. I was assigned as the SHU number two officer on September 8, 2021.

¶ 8. From looking at the video I believe it was time for a round and [the female
Grievant] was passing out cleaning supplies.

¶ 9. [The female Grievant] did not tell me she was going to place a mattress
in the cell with inmates.

¶ 10. I did not observe [the female Grievant] cuff any inmates … before
opening the cell door.

¶ 11. I was unable to determine if the cell was occupied by any inmates.

¶ 12. If I would have known the cell she opened had inmates in it I would
have reported it to my supervisor.

¶ 13. I do not have any additional information to add to this statement related
to the investigation. AX 3.

Although a new Warden was appointed during the grievance process,

Grievants were able to call the former Warden CG to testify via videoconference.

He now is warden of the Federal Correctional Complex in Forrest City, Arkansas.

TR @ 153, 154 (“here at Forrest City”). Likewise, Lt. WT testified via

videoconference from FCI Milan, where he currently is employed in Michigan. TR

@ 158. The lapse of time did not prevent Grievants from mounting a defense. Had
13
the Union been unable to present these witnesses because of the lengthy lapse of

time, the arbitrator would have reached a different decision. However, based upon

the foregoing evidence, the arbitrator concludes that the year-long investigative and

disciplinary procedures did not deprive Grievants of due process.

THE DOUGLAS FACTORS NEED NOT BE CONSIDERED

IN A MERE DISCIPLINARY ACTION

The briefs of both parties are replete with references to the Douglas Factors.

Douglas v Veterans Administration, 5 MSPB 313, 5 MSPR 280 (1981).

Nevertheless, the Union concedes:

While an arbitrator is not required to consider the Douglas factors in

suspensions of fourteen days or less, they may apply them. See AFGE Local
522 and Dep’t of Veterans Affairs, 66 F.L.R.A. 560, 563 (2012). Union Brief
@ 23, n 5.

See also National Air Traffic Controllers Association and US Department of

Transportation, 52 FLRA No. 77, ¶ IV.B.3; 52 FLRA 787 (1996):

The Authority has consistently held that arbitrators are not required to
consider the Douglas factors in cases involving suspensions of 14 days or
less. American Federation of Government Employees, Local 3887, National
Council of Department of Education Locals, Council 252 and U.S.
Department of Education, Institutional Review Branch, Office of Student
Financial Assistance, Region IV, 48 FLRA 717, 721 (1993). (Emphasis by
arbitrator).

The Union is correct that the Douglas Factors may be applied in a disciplinary

action, e.g., Army Airborne, supra. The arbitrator elects not to consider them for two

reasons: The case is simple, and the security infractions are clear and serious. The

14
case is described as “simple” and “not complex” and the facts as “simplistic” in the

Union Brief @ 13-14. Such a case does not require detailed analysis.

AGENCY MANAGEMENT’S AUTHORITY TO PROTECT THE

SECURITY OF THE PRISON IS GREAT

The collective bargaining agreement must be interpreted in light of governing

federal statues, including relevant provisions of 5 USC § 7106(a):

(a) Subject to subsection (b) of this section, nothing in this chapter shall affect
the authority of any management official of any agency—
(1) to determine the mission, budget, organization, number of employees, and
internal security practices of the agency; and
(2) in accordance with applicable laws—
(A) to hire, assign, direct, layoff, and retain employees in the agency, or to
suspend, remove, reduce in grade or pay, or take other disciplinary action
against such employees;
(B) to assign work, to make determinations with respect to contracting out,
and to determine the personnel by which agency operations shall be
conducted;
(D) to take whatever actions may be necessary to carry out the
agency mission during emergencies. (Emphasis supplied).

The authority granted in 5 USC § 7106(a) is reflected in CBA, Article 5 –

Rights of the Employer, Section a:

Subject to Section b. of this article, nothing in this section shall affect the
authority of any Management official of the Agency, in accordance with 5
USC, Section 7106:

1. to determine the mission, budget, organization, number of employees, and

the internal security practices of the Agency; and

2. in accordance with applicable laws:

a. to hire, assign, direct, layoff, and retain employees in the Agency, or to
suspend, remove, reduce in grade or pay, or take other disciplinary action
against such employees. JX 1 @ 8; emphasis supplied.
15
 Management has some very specific authority under Article 30, Section g,

with respect to discipline:

The Employer retains the right to respond to an alleged offense by an

employee which may adversely affect the Employer’s confidence in the
employee or the security or orderly operation of the institution. The Employer
may elect to reassign the employee to another job within the institution or
remove the employee from the institution pending investigation and resolution
of the matter, in accordance with applicable laws, rules, and regulations. JX
1 @ 71; emphasis supplied.

Thus, although the Union complains that the female Grievant was “reassigned from

her SHU post pending an investigation,” it is clear that Management had express

authority to do so. TR @ 135-136; Union Brief @ 3.

WHETHER THE SUSPENSIONS

GIVEN GIEVANTS WERE REASONABLE

To the arbitrator, the only remaining question is whether the discipline

assessed was reasonable. The Union contends:

The Agency did not properly consider any mitigating circumstances in

deciding to suspend [Grievants]. [The female Grievant] stated in her two
affidavits to SIS Lieutenant [BL] and in her hearing testimony that there were
only two staff members in the SHU at the time of the incident and that she
was the only female officer in the SHU. Ax 3 at 6; Ux 1; Tr. at 181. [The
female Grievant] testified that she requested assistance and no one came.

Q: And did you call for anyone to assist you with that?
A: Yes, ma’am.
Q: And how did you do that?
A: On the radio. I contacted operations.
Q: When you contact operations on the radio, how is that done … ?
A: So I went back to Channel 1. And SHU two operations. Can you step down,
I need to give an inmate some distro.
Q: Distro?
16
 A: Distro meaning the mattress and the cleaning supplies.
Q: So you put that call out over the radio. And then how long would you say
you waited?
A: I put it out right once we got done counting. So it probably took us maybe
about five or six minutes to count all the ranges. So I waited until the next
round.
Q: Okay. And then the next round would be?
A: 10:30.
Q: Okay. And you said no one responded?
A: No one responded.
Tr. at 178–79.

In the Agency’s proposal notice for [the female Grievant], it stated:

You did not call on the radio for another staff member to assist you in cuffing
the inmates and opening the door.
Jx 2 at 1. Union Brief @ 31-32.

The Agency did not take into consideration that [the female Grievant] did call
for assistance and when none arrived, she remedied the situation as best as she
could with the resources available. Union Brief @ 33.

On cross-examination, the Agency made the point that the female Grievant’s

calls for assistance had never been raised previously. TR @ 188. The arbitrator notes

that she said nothing about them in either of her affidavits, both of which conclude

with her assertion:

I do not have any additional information to add to this statement related to the
investigation. AX 3, UX 1.

It is unclear how the Agency was supposed to take into consideration events that had

not been brought to its attention until the arbitration hearing. The restraint procedure

is described in TR @ 40-41, 176-177. Also unclear is why it mattered that Grievant

was the only female on duty, as all that was required was assistance in restraining
17
two inmates, which could have been provided by a Correctional Officer of either

sex. Union Brief @ 32. Indeed, it appears that help was available. TR @ 53-54

(compound officer or operations lieutenant).

Lieutenant BL explained the danger:

Q. What is the issue with opening the door and inmates are not restrained?
What could occur?

A. First, you are by yourself. They will become combative and they have got
you, they have taken you on a secured range, access to your keys. And as an
officer on the range with cell door keys, now they can open up all the doors
on the range. TR @ 44.

Q. Okay. Are you aware of situations where staff have been attacked in the
Special Housing Unit by inmates?

A. Yes.

Q. Have they been injured?

A. Yes. TR @ 45-46.

By failing to cuff the two inmates before delivering a mattress and cleaning

supplies for the new inmate, the female Grievant created a dangerous situation for

herself, that could have put the male Grievant in a predicament as well. Suppose, for

example, that one or both of the inmates had attacked the female Grievant and were

strangling her, so that immediate intervention was required. The lone male Grievant

would have had only a Hobson’s choice. This kind of dilemma is precisely what the

rule on restraints was promulgated to avoid.

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 The male Grievant insists that he “was unable to determine if the cell was

occupied by any inmates.” However, the timeline shows that he conducted a count

at 10:03 and that the incident at issue did not occur until 10:33. If he conducted a

count, he surely knew how many inmates were in that cell. TR @ 32, 43, 173-174

(“You are looking to make sure every inmate is alive, breathing, unharmed.”). This

point was made by the Agency in its proposal letter of July 22, 2022, to the male

Grievant. JX 7. He also claims that he “was not aware that I needed to report this. I

was not aware that incidents of this nature are to be reported directly to the Warden.”

JX 9 (male Grievant’s Memorandum to Warden, August 2, 2022). Again, his

statements are not supported by the record.

In the proposal letter of July 22, 2022, to the male Grievant, Captain OM

wrote:

It is imperative to the safety and security of the institution that all Federal
Bureau of Prisons (Bureau) staff report any observed staff misconduct, or
appearance of misconduct, to a supervisory official in command. Indeed, the
Standards require employees "[a]s soon as practicable (but no later than 24
hours) [to] report to their CEO (or other appropriate authority such as the
Office of Internal Affairs or the Office of the Inspector General) any violation,
appearance of a violation, or attempted violation of these Standards or of any
law, rule, or regulation." Additionally, Program Statement 3420.11, Standards
of Employee Conduct, states, "Every employee is required to immediately
report to management any act or omission by any person that could result in
a breach of institution security." JX 7.

In AX 6, dated 3-10-21, the male Grievant signed the following

acknowledgement:

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 I … hereby acknowledge receipt of Program Statement #3420.11. I further
acknowledge that my conduct is governed by this policy and it is my
responsibility to familiarize myself with the provisions of this document.

The male Grievant is, therefore, charged with knowledge of his duty to report the

female Grievant’s breach of prison rules that he observed.

In the Memorandum to the Warden, dated August 11, 2022, the Union argues:

The violation quoted for discipline "Failure to Place Restraints (Handcuffs)

on Inmates in Special Housing Unit (SHU) Cell" is not listed in the table of
penalties of Program Statement 3420.11 Standards of Employees Conduct.
How can any Officer be held accountable if never put on notice? JX 3.

Although that violation may not be listed, Statement 3420.112 plainly states on page

21, “The offenses listed are not inclusive of all offenses.” The evidence does not

support the claim that the male Grievant was “never put on notice.”

In the Union President’s Memorandum of August 11, 2022, he cites only the

first phrase of Article 30, Section c. JX 3. The complete provision states:

The parties endorse the concept of progressive discipline designed primarily

to correct and improve employee behavior, except that the parties recognize
that there are offenses so egregious as to warrant severe sanctions for the first
offense up to and including removal. JX 1 @ 70; emphasis supplied.

The President went on to urge that discipline is inappropriate:

It is the Union’s contention that the deciding official should not impose
discipline on this matter. …

Given these mitigating (Douglas) factors a deciding official imposing

discipline at this time would not be correcting or improving employee

2
https://www.bop.gov/policy/progstat/3420_011.pdf

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 behavior. The proposed discipline should be disseminated to no action.
Discipline would be tantamount to punishment the employee, which the
parties mutually agreed that it is not for such purpose. JX 3.

The Grievants themselves, in similar letters, conceded, “I have learned from

this incident and I am ready to move forward with my career in the BOP.” JX 4, JX

9; see also TR @ 199 (“It caused me to be more aware of my actions.”). To the

arbitrator, discipline reinforces learning and emphasizes the need to follow security

rules. Moreover, it sends a clear message to other prison employees that security

rules are to be followed.

The arbitrator agrees with the Agency’s findings. JX 5, JX 10. He further

defers to the Agency’s decision as to the penalties, for the reasons explained in

Lachance v Devall, 178 F3d 1246, 1251 (Fed Cir 1999):

OPM argues from our case law that penalty determinations are "judgment
calls" within the discretion of the employing agency. Beard v. General Serv.
Admin., 801 F.2d 1318, 1322 (Fed. Cir. 1986) (quoting Weiss v. United States
Postal Serv., 700 F.2d 754, 758 (1st Cir. 1983)). This proposition is
unassailable, for, as we have stated: "[i]t is a well-established rule of civil
service law that the penalty for employee misconduct is left to the sound
discretion of the agency." Miguel v. Department of the Army, 727 F.2d 1081,
1083 (Fed. Cir. 1984). Accordingly, OPM points out, under the abuse of
discretion standard that pertains to review of agency penalty determinations,
we "will not disturb a choice of penalty within the agency's discretion unless
the severity of the agency's action appears totally unwarranted in light of all
factors." Mings v. Department of Justice, 813 F.2d 384, 390 (Fed. Cir.
1987); see also Beard, 801 F.2d at 1321 ("the employing (and not the
reviewing) agency is in the best position to judge the impact of employee
misconduct upon the operations of the agency . . ."); Hunt v. Department of
Health and Human Servs., 758 F.2d 608, 611 (Fed. Cir. 1985)
("Determination of an appropriate penalty is a matter committed primarily to
the sound discretion of the employing agency."); Hagmeyer v. Department of
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 Treas., 757 F.2d 1281, 1284 (Fed. Cir. 1985) (stating that penalty selection is
"committed primarily and largely to the discretion of the agency" unless "the
severity appears totally unwarranted").

As to the male Grievant’s 2-day suspension, but for Lt. WT’s random review

of video footage, this serious security violation may never have some to light,

because the male Grievant failed to report it. TR @ 11, 131-132, 160-161.

The parties compiled JX 12, indicating discipline for Failure to Report Staff

Misconduct and Failure to Place Restraints on an Inmate, that occurred in past cases

during 2019-2022. While there is no detail about those disciplinary proceedings, the

information does provide a context in which to view the current cases. For example,

as previously noted, the male Grievant received a 2-day suspension. From JX 12, an

employee received a 5-day suspension for “Failure to Report Violation of

Rules/Regulations”. Thus, on its face, the male Grievant’s 2-day suspension does

not seem out of order.

Moreover, the Agency appears to have leaned over backwards to ensure that

the male Grievant would suffer minimal financial loss. His suspension was set to

begin September 16, 2022, a Friday. He was to return to work on September 18,

2022, a Sunday, or on his next scheduled workday. JX 15, a record of his Daily

Assignment, shows that Saturday, September 18, and Sunday, September 19, were

off days, so that in reality, he lost only a single day’s pay. TR @ 151.

Furthermore, in the male Grievant’s subsequent Employee Performance

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Appraisals—UX 5, covering the Rating Period 04/01/2021-03/31/2022 (“Great

Job”), and UX 6, covering the Rating Period 04/01/2022-03/31/2023 (“Awesome

job!”)—he was not downgraded for the incident of September 8, 2021. The arbitrator

finds no basis for any claim that his discipline was excessive.

Similar considerations attend the female Grievant’s 6-day suspension. JX 12

indicates that an employee was given a 5-day suspension for “Breach of Security,

Failure to Follow Post Orders, Lack of Candor”. A 6-day suspension is hardly more

stringent than a 5-day one, especially given the Agency’s efforts to minimize the

financial impact on the female Grievant.

The female Grievant’s 6-day suspension was set to begin Saturday, September

24, 2022. She was to return to work on September 30, 2022, or her next scheduled

workday. JX 5. The first 3 days of her suspensions were off days, but nevertheless

were counted as part of her suspension. The final 3 days were the only days on which

she lost pay. JX 14 (her Daily Assignments); TR @ 151; Union Brief @ 26-27.

Again, there is no way the arbitrator could find that her discipline was excessive.

Moreover, it appears to have had no effect on her Employee Performance Appraisals,

as she was evaluated as outstanding for the past two years. TR @ 185; Union Brief

@ 30.

In claiming the disciplines were excessive, the Union quotes the Warden in

its Brief:

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 Q: And you decided that a six-day suspension, that was the least amount that
you could do?

A: Yes.
Q: And why?

A: We were advised by our legal department to – six days would probably be

appropriate because it was a pretty dangerous thing that happened. Tr. At
150. Union Brief @ 26; emphasis by arbitrator.

As business entities, prisons are virtually sui generis, and security is of the

utmost importance. An arbitrator must defer to the judgment of the prison Warden

about matters of prison security. Lachance v Devall, supra; AFGE Local 614 and

Federal Bureau of Prisons, supra. Although the Union Brief was well researched

and written, the focus was on procedure, whereas the Warden and the arbitrator are

focused on substance, particularly on prison security.

AWARD

The arbitrator finds that the discipline assessed against Grievants was taken

only for just and sufficient cause and to promote the efficiency of the service, and

that the nexus between the discipline and the efficiency of the federal service is clear,

as required by Article 30, Section a, CBA @ 70. The grievances are DENIED.

________________________________
E. Frank Cornelius, PhD, JD, Arbitrator

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