By Anthony Rice
In Dep’t of Homeland Security, Arbitrator John Hoose held that U.S. Customs and Border Protection violated double jeopardy when it punished an Agent twice for the same DUI offense.
The Grievant, a Border Patrol Agent, worked for U.S. Customs and Border Protection (the Agency) as a Foot Patrol Agent then, eventually, on Helicopter Patrol. While she was off-duty she had some drinks with friends and was driving home around 4:00 a.m. A Police Officer of the El Paso Police Department stopped her for driving her car with the lights out. After smelling alcohol, he required the Grievant to undergo a standard sobriety test, which she failed. At the station, her blood alcohol level was measured at 0.185. The Agency assigned her to administrative duties in the horse stable until further notice.
Following several meetings and exchanges of information, she was given a five-day suspension. She was suspended from work without pay, from September 13th through September 17th, at which time she was returned to stable duty. A few months later, she received notice that her suspension was “dismissed” and that she would be receiving back her lost wages. However, several months after that, she received an Agency proposal charging her with “Conduct Unbecoming.” She was then given another suspension, this time for three days. The Union filed a grievance contending that the Agency is charging the Grievant twice for the same DUI offense.
The Agency, however, contends that since the first offense was rescinded they were now free to present another charge. They contend that the Grievant was completely rescinded and she received all pay and allowance to which she was entitled before the disciplinary action for Conduct Unbecoming was instituted. However, the Arbitrator found that “in fact [she] still has not received her full lost wages.”
Any prudent employee, who has violated a rule, is charged with the violation, admitted to committing the misconduct, and serves a 5-day suspension: would reasonably assume that the issue is closed. They should have the full expectation that no further discipline is to be administered on that misconduct. This should be true if the discipline is called something else or it is rescinded . . . When an employee violates a rule the agency is limited to one charge and discipline for that offense, they are not free to make any number of charges limited only by the thesaurus.
Editor’s Note [Jim Cline]: The Arbitrator must have been puzzled, if not amused, by the Employer’s attempted sleight of hand. He obviously did not fall for the Employer’s efforts at word play. Apart from the important principle of double jeopardy, which was enforced here, Arbitrators have stressed the important of prompt resolution of discipline issues. Allowing a “dismissal” of one discipline later followed by entry of a new and harsher discipline, does not advance the prompt discipline goal either.
