By Jim Cline and Jordan L. Jones
In Dep’t of Homeland Security,133 LA 419 (Nicholas 2014) the Arbitrator, citing the memorandum of understanding, denied a Border Patrol Agent’s grievance for being placed on administrative duty, following a DWI arrest, for “too long.”
The Union argued that the time the Agent spent on administrative duty for her D.W.I./D.U.I. arrest was in violation of the memorandum of understanding implemented by U.S. Customs and Border Protection. Specifically, the Union contended that the administrative duty “was excessively long, thereby denying . . . [the Agent the] opportunity to receive premium compensation (i.e., working holidays, Sundays, and/or night differential).”
The Agent was arrested for D.W.I./D.U.I. in October 2011 and was placed on administrative duty until October 2012. The criminal charges were dropped in April 2012 by the County and CBP conducted their internal investigation from June 2012 to October 2012. The Union believed that the Agent should have been taken off administrative duty when the criminal charges were dropped. The Union demanded that $34,000 be given to the Agent for the compensation lost between April 2012 and October 2012.
Border Patrol, on the other hand, argued that the Agent’s D.W.I./D.U.I. arrest wasn’t covered by a memorandum of understanding which “indisputably empowers Management with the authority to conduct an investigation when a. . . [Agent] is arrested for D.W.I./D.U.I..” The Border Patrol further argued that:
There is no required statutory time period in which [the] Agency is required to complete its formal findings. . . [and the] practice of waiting until the criminal proceedings are finalized before initiating its investigation does not violate the spirit or the verbiage of the . . . [memorandum of understanding].
The Arbitrator denied the Union’s grievance and held that the D.W.I./D.U.I. memorandum of understanding allowed the Border Patrol to place the Agent on administrative duty until the internal investigation was completed. The Arbitrator noted that:
While I am sympathetic to [the] Union’s argument, it has not shown that [the] Agency’s actions were unreasonable per the wording of the . . . [memorandum of understanding], nor has it shown that [the] Agency has maintained a practice of initiating investigations surrounding a . . . [Agent’s] arrest for D.W.I./D.U.I. while criminal proceedings have not been finalized . . . . If it is the Union’s desire that Management be required to initiate its investigation simultaneously with the arrest, it must take the appropriate steps to amend the language of the. . . [memorandum of understanding]. And this is strictly a function of collective bargaining, not a matter for an arbitrator’s making.
Even absent an MOU, management has some degree of management rights to place employees on administrative leave during internal investigations. Such actions can be grieved if that authority is exercised in a discriminatory manner or if the investigations is of an unreasonable duration. Here the employer decided to wait until after the criminal case was completed before undertaking its own investigation. While such a delay may not be best practice, that approach is not uncommon among law enforcement employers and the parties’ MOU on the subject specifically allowed such a deferral of the investigation.
