FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 02-01186

AFGE LOCAL NO. 1770,

Union,

and

DEPARTMENT OF THE ARMY,

XVIII AIRBORNE CORPS and
FORT BRAGG,
Agency.
______________________________/

OPINION OF THE ARBITRATOR

March 28, 2002

After a Hearing Held March 5, 2002

In the Union Offices at Fort Bragg, North Carolina

For the Union: For the Agency:

Philip W. Barton Jon B. Crocker

Attorney at Law Major, Judge Advocate
PO Box 53581 Chief, Civil Law
Fayetteville, NC 28305-3581 Fort Bragg, NC 28310-5000
 1.0. The Parties

Grievant is employed as a physician’s assistant by the Department of

the Army in the Clark Health Clinic of Womack Army Medical Center at

Fort Bragg, North Carolina (“Agency”), where civilian employees are

represented by Local No. 1770 of the American Federation of Government

Employees, AFL-CIO (“Union”). Labor relations between the parties are

governed by a Contract Agreement dated September 25, 2000, which was

received into evidence as JX 1 (“CA”). The parties have an enviable record

of harmonious labor relations, as this is only the second arbitration to arise at

Fort Bragg. Grievant was suspended for seven (7) days for failing to update

patient charts in a timely manner.

2.0. The Issues

The issues presented may be discerned from a memorandum dated

July 18, 2001, to Grievant from Lieutenant Colonel Kenneth B. Batts:

1. Reference is made to memorandum, MCXC-CHC, subject: Notice of

Proposed Suspension, dated 26 June 2001, and received by you on 26
June 2001, in which it was proposed to suspend you from your
position of Physician’s Assistant, GS-603-12, for 7 calendar days, for
failure to follow verbal and written procedures.

2. After thorough consideration of the reasons for the proposed

suspension, your written response, dated 10 July 2001, and your oral
response of 10 July 2001, I find that there is sufficient evidence to
sustain corrective action for the inability to maintain standard medical
practices in the community. Accordingly, it is my decision to sustain
the proposed action and suspend you, from your position, for a period

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 of 7 calendar days, effective 31 August 2001 through 6 September
2001. You will return to duty on 7 September 2001. All relevant
“Douglas factors” have been considered before arriving at this
decision. A Standard Form 50, Notification of Personnel Action,
effecting this action will be forwarded under separate cover. … AX 9;
emphasis supplied.

Grievant objects to the discrepancy between the charge in the Notice

of Suspension, “failure to follow verbal and written procedures” (JX 3, AX

7), and the Agency’s finding, “inability to maintain standard medical

practices in the community” (JX 2, AX 9), and to the severity of the penalty.

Grievant further contends that the Agency’s finding of “inability to maintain

standard medical practices in the community” is tantamount to one of

incompetence and could result in loss of his medical license and

opportunities for future employment. The Agency views the issue as solely

one of employer discretion and contends that the penalty imposed is well

within the parameters of AR 690-700, Chapter 751, Table of Penalties for

Various Offenses, 17 Sep 87, AX 10.

3.0. Pertinent Provisions Of The Contract Agreement

Article II, SECTION 1:

In the administration of all matters covered by this Agreement, officials and

employees are governed by existing and/or future laws and the regulations of
appropriate authorities, including all Government Wide laws, rules, and
regulations in existence at the time this Agreement is approved; and by
subsequently published Government wide laws, rules, regulations, and
policies, to include Agency policies and regulations required by law, or
Government wide regulations.

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Article III, SECTION 3:

Employees are entitled to fair and equitable treatment consistent with Merit
System Principles in matters affecting their employment.

Article XXX, SECTION 3:

A copy of the reasons for proposing and/or effecting a disciplinary action
against an employee will be furnished to the employee.

Article XXX, SECTION 6:

The procedure for taking a formal disciplinary action other than reprimands
is for the Employer to issue a notice of proposed disciplinary action which
will advise the employee of the infraction or breach of conduct and when
and where it occurred as well as any other legal or regulatory requirements.

Article XXXII, SECTION 4:

The arbitrator shall not have the authority to change, alter, modify or delete
from this Agreement, or the published policies and regulations of
appropriate authorities.

4.0. The Procedural Posture Of The Case

A hearing was held on March 5, 2002, in the Union offices at Fort

Bragg. The parties agreed upon several Joint Exhibits. For its case in chief,

the Agency simply tendered 11 Agency Exhibits, the last of which was a

brief dated March 5 (“AB1”). The Union called Grievant as its only witness.

At the time, the Agency presented no rebuttal. However, with a brief dated

March 18, 2002 (“AB2”), the Agency included additional evidentiary

material, to which the Union objected on March 27, 2002. The Union had

filed its brief on March 20, 2002 (“UB”). Evidence submitted after

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conclusion of the hearing is inadmissible absent the other party’s consent.

IBEW Local 2356 and Okonite Company, 01-2 ARB ¶ 3830, 28 LAIS 3805

(Cornelius Arb 2001).

5.0. The Debate Over The Standard Of Review

The parties disagree over the standard to be applied when an arbitrator

reviews a government agency’s disciplinary action. The Union contends that

a de novo standard should apply. The Agency seems ambivalent.

Initially in AB1 @ 1, the Agency states:

In a formal disciplinary action, the Agency must prove, through a

preponderance of the evidence, that:
(a) the employee committed the misconduct, and there is a
nexus or connection between the misconduct and the
efficiency of the service; and
(b) the Agency followed proper procedures; and
(c) the severity of the penalty is appropriate.

This statement of the burden of proof comports with general

understanding. Elkouri & Elkouri, How Arbitration Works (ABA/BNA 5th

ed 1997) @ 447-449, 905-906; Hill & Sinicropi, Evidence in Arbitration

(BNA 2nd ed 1987) @ 39-41 (“As a general practice, … in disciplinary cases

the burden is on management both to proceed first with its evidence and to

prove employee guilt or wrongdoing.”). Although the standard may vary

with the nature of the case, the preponderance standard is common. Cf. 5

USC § 7701(c)(1)(B).

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 Later in AB1 @ 6, the Agency states:

[W]hen examining the actions of an Agency Deciding Official,

the proper standard of review is not one of de novo, but rather one of
whether the Deciding Official committed an abuse of discretion. Uske
v. U.S. Postal Service, 56 F.3d 1375 ([Fed Cir] 1995).

Agency Deciding Officials are upheld when their findings are

supported by substantial evidence, there is an absence of procedural
defects, and the penalty is not excessive under the circumstances.
Grover v. United States, 200 Ct. Cl. 337 (1973).

Both cases involved court review of agency disciplinary action.

Although the arbitrator does not sit as a court reviewing Agency action, it

will be seen that the Agency’s finding of Grievant’s “inability to maintain

standard medical practices in the community” cannot be sustained under

even such a deferential standard. In AB2 @ 6-7, the Agency seems to clarify

its position that an abuse of discretion standard applies to the penalty

imposed, a position with which the arbitrator agrees.

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 (including
discourteous conduct to the public confirmed by an immediate
supervisor's report of four such instances within any one-year period
or any other pattern of discourteous conduct).

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 (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;

(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, as the Agency notes in AB2 @ 7. 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,

supra, @ 76-83.

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

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Cumberland, Maryland and AFGE, Council of Prisons Local 4010, 53

FLRA No. 38 (1997),1 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
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)

1
http://www.flra.gov/decisions/v53/53-038-4.html/

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 (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.

However, it should be noted that Grievant would satisfy the harmful-error

rule of that case, because he has demonstrated personal harm, and the Union

does not seek redress on its own behalf. The Agency’s finding of Grievant’s

inability to maintain standard medical practices in the community “cast[s]

doubt upon the reliability of the agency’s factfinding or decision.” Id. @

663.

In AB2 @ 6, the Agency states:

The Agency understands the Article III, Section 3 clause to reflect a

negotiated agreement to apply Merit Systems Protection Board
decisions (as subject to judicial review) over any other source of law
where there may be a conflict and a choice of law is required.

The Agency states its position without reference to evidence or citation to

authority. Inasmuch as the arbitrator’s decision is appealable to only the

FLRA under 5 USC § 7122, the arbitrator will follow FLRA precedent and

treat this as an ordinary labor arbitration. As will be seen, the result is the

same under any reasonable standard or burden of proof, as the facts are

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essentially undisputed.

6.0. The Arbitrator’s Decision

The arbitrator agrees with Grievant that the Agency’s ultimate finding

is clearly erroneous and without support in the record. However, Grievant

candidly admits that he failed to maintain patient charts and concedes that

discipline is warranted for that offense. In point of fact, the penalty assessed

was for the offense originally charged, “failure to follow verbal and written

procedures”; indeed, “inability to maintain standard medical practices in the

community” would not readily fit into any of the categories of offenses

described in the Table of Penalties for Various Offenses, AX 10. With this

understanding as to the nature of the offense actually committed and

punished, the Agency is correct that the penalty imposed is well within the

bounds of its discretion for assessing disciplinary penalties.

7.0. The Douglas Factors

Additional facts in support of the Agency’s imposition of discipline

and the arbitrator’s decision may be gleaned from LTC Batts’ analysis of the

Douglas factors used for assessing offenses and their penalties, Douglas v

Veterans Administration, 5 MSPB 313, 5 MSPR 280 (1981), which was

attached to his memo of July 18, 2001, AX 9:

1. [Nature and seriousness of offense]: The offense is considered very

serious. Mr. [JWO] is a Physician’s Assistant who provides direct

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 patient care. As a provider, he is responsible for accurately
documenting each patient encounter … . … The standard for basic
patient care mandates that all providers document treatment after each
patient visit. … By not providing documentation of each patient
encounter in an appropriate time, Clark Health Clinic and Womack
Army Medical Center are liable for not meeting standard medical
practices.

2. [Employee’s job level]: … [Grievant] does hold a professional

position. Mr. [JWO] has direct contact with patients … . Mr. [JWO]
requested and was granted the responsibility for providing sick call to
active duty soldiers … . … In November 2000, four patients
complained that their charts were not available. The charts were found
in Mr. [JWO]’s exam room. …

3. [Employee’s disciplinary record]: Mr. [JWO] was verbally counseled

for failure to document patient charts twice in October 2000. He
received written counseling in November 2000 and in January 2001
for failure to perform patient chart documentation which displays a
pattern of noncompliance. No disciplinary action has been previously
forwarded to his official personnel file.

4. [Employee’s work record]: Mr. [JWO] has worked for the Federal
government for 11 years. He has maintained successful performance.
…

5. [Effect of offense]: This is not an isolated incident. Despite both

detailed verbal and written counseling by his team leader, Mr. [JWO]
failed to correct his behavior. Mr. [JWO] states he now understands
the seriousness of the offense, the importance of documenting his
patient encounters and will complete his charts on a daily basis. …

6. [Consistency of penalty]: There has not been a similar offense

(failure to chart patient record) at Fort Bragg, North Carolina.

7. [Table of penalties]: Penalty is consistent with AR 690-700, Chapter

751, Table of Penalties. 14. Failure to observe written regulations,
orders, rules or procedures. (b) Violation of administrative rules or
regulations where safety to persons or property is endangered.

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 Penalty: Written Reprimand to Removal. {Arbitrator’s comment: This
is the range of penalties for a first offense; see paragraph 3 above.}

8. [Notoriety of offense]: In November of 2000, four patients

complained because their charts could not be located. … The absence
of documentation in Mr. [JWO]’s patient charts has the potential to
endanger those patients and open the Medical Center to litigation,
which would discredit our professional credibility.

9. [Clarity of notice]: Mr. [JWO] was counseled verbally and in writing

prior to any action being proposed. …

10. [Potential for rehabilitation]: … Mr. [JWO] stated during his oral
response that he is now completing all patient charts by the end of the
day.

11. [Mitigating circumstances]: In his written response, Mr. [JWO] listed

many personal problems. … There are no relevant mitigating factors
seen.

12. [Alternative sanctions]: Due to the seriousness of this offense of not

being able to provide standard medical practice in documenting
patient encounters and the potential to endanger patients, an
alternative sanction is not seen as an option. (Emphasis supplied.)

8.0. The Agency’s Briefs

There simply is no evidence that Grievant ever lacked the ability to

complete patient charts or otherwise maintain standard medical practices in

the community. That he failed to do so on numerous occasions, perhaps

fewer than 40 in total, during a particularly stressful period in his personal

life, is not disputed, but his ability to do cannot seriously be disputed either.

In fact, Grievant completed all patient charts except those he specifically is

accused of failing to complete, and he typically sees 30 patients per day and

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has seen as many as 85.

The description of Grievant and his conduct in AB1 @ 5 belies the

Agency’s effective finding of his incompetence:

The Agency has elected to pursue this action as misconduct

under Chapter 75 of the CSRA [Civil Service Reform Act of 1978].
This choice reflects a management characterization of Mr. [JWO]’s
conduct as one more aligned with insubordination than one requiring
further training in specific job skills. …

… Prior to this event, Mr. [JWO] has been a valued employee.

He has received glowing efficiency reports and on several occasions
he has been recommended for, and received, several thousands of
dollars in annual bonuses. He has many years of experience and is
generally considered by others to be an asset to the operation of Clark
Clinic.

In AB2 @ 4, the Agency further concedes:

The Agency does not believe Mr. [JWO] lacks the understanding of
how to complete patient medical charts. … The Agency position is
that he lacked the motivation to perform the task. …

As the Agency has stated in its briefs, had it considered Grievant’s

misconduct to amount to incompetence, it would have proceeded differently.

Lovshin v Dept of the Navy, 767 F2d 826 (Fed Cir 1985); Elkouri & Elkouri,

supra, @ 76-83. As previously noted, the Table of Penalties for Various

Offenses, AX 10, upon which the Agency relies, does not even address

incompetence. By convicting Grievant of an offense with which he was not

charged and did not commit, the Agency violated CA Article II, SECTION 1

(due process); Article III, SECTION 3 (fair and equitable treatment); and

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Article XXX, SECTION 6 (accurate notice). The Agency failed to carry its

articulated burden of proving by a preponderance of the evidence that (a) the

employee committed the misconduct ultimately found, and that (b) the

Agency followed proper procedures.

In support of its finding of Grievant’s “inability”, the Agency in AB2

@ 5 cites Otero v US Postal Service, 73 MSPR 198, 97 FMSR 5044 (1997),

for the proposition “that an Agency adverse action charge needs no label or

characterization.” In the instant matter, the complaint is not with the charge

per se but with the inconsistency between it and the Agency’s ultimate

finding of Grievant’s “inability”, which renders the notice inadequate, if not

misleading. It is really the notice of decision under 5 USC § 7503(b)(4) of

which Grievant complains, not so much the notice of proposed action under

5 USC § 7503(b)(1). See 5 CFR § 752.203(e) (“In arriving at its written

decision, the agency shall consider only the reasons specified in the notice of

proposed action … .”). Thus, Otero is inapposite.

Under these facts, the Agency’s action could not be upheld even under

the deferential standard of review for which the Agency seems to argue in

AB1 @ 6, because the effective finding of Grievant’s incompetence is not

supported by substantial evidence and there is not an absence of procedural

defects. It was error for the Agency to find “that there is sufficient evidence

14
to sustain corrective action for the inability to maintain standard medical

practices in the community (emphasis supplied).” It does not follow,

however, that commission of such an error requires setting aside all

disciplinary action.

The Agency cites Grover v US, 200 Ct Cl 337 (1973), which, while an

adverse action case, bears similarities to the instant matter insofar as

procedural defects are concerned. Although the specified areas for

improvement in plaintiff’s job performance set forth in the 90-day letter

differed somewhat from the specific charges enumerated in the 30-day

proposed dismissal notice, the court held that such differences were

immaterial and did not constitute prejudice to plaintiff where dismissal

occurred more than 30 days after the notice, thus affording plaintiff adequate

time within which to answer both in writing and orally the charges set forth

in the notice which governed the adverse action.

At each principal step of the grievance procedure, Grievant and the

Union were afforded the opportunity to air their objections orally and in

writing. Grievant admitted the infractions with which he was charged in the

original Notice of Proposed Suspension, AX 7. At the arbitration hearing,

Grievant further admitted that he understood all along that the issue was his

failure to complete patient charts. The discipline imposed was for that

15
failure. Under these circumstances, it would elevate procedure over

substance to exonerate Grievant, especially when the Agency’s error in

misstating his offense is readily remedied by requiring a correction.

9.0. The Union’s Brief

The Union’s primary contention is that the Agency has not borne its

burden of proving that Grievant’s offense falls within the ambit of Section

14(b) (persons or property endangered), as opposed to 14(a) (persons or

property not endangered), of the Table of Penalties for Various Offenses. UB

@ 2-3. This contention deserves short shrift. The failure to note a patient’s

diabetes, heart disease, drug allergies or other medical conditions or treatments

on his medical chart could lead to a medical disaster. Grievant’s failures to

complete patient charts put his patients at risk and exposed the Agency to

liability, as was noted by LTC Batts in his analysis of Douglas factors.

10.0. Grievant’s Request For Correction

Grievant holds a license to practice his medical arts, for which he fears.

He describes a finding of incompetence as a “death sentence” in the health-

care field. He is concerned that, if such a finding remains in his personnel files,

then he will not be able to obtain other employment in his field. His fears

appear well founded, because releases which the Agency itself required him to

sign, AXs 3 and 4, provide in pertinent part:

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 I hereby authorize the Commander, Credentials Committee, or their
representatives to consult with administrators and members of medical
staffs of other hospitals or institutions with which I have been associated
and with others, including past and present malpractice carriers, who
may have information bearing on my professional competence … .

See also 5 USC § 7503(c) (requiring the Agency to maintain “the notice of

decision and the reasons therefor”). The Agency’s unadorned finding of

Grievant’s “inability to maintain standard medical practices in the

community” sits like a land mine in his personnel files, waiting to wreck his

career. 2 It must be expunged forthwith.

11.0. Award

For all the foregoing reasons, the grievance is SUSTAINED IN PART

and DENIED IN PART. Grievant’s 7-day suspension is affirmed. The Agency

is directed to correct its records, particularly Grievant’s personnel files, to

reflect the fact that Grievant is guilty only of failure to follow verbal and

written procedures with respect to the maintenance of patient charts.

Dated March 28, 2002

_____________________________
E. Frank Cornelius, Arbitrator

2
In its post-hearing submissions, the Agency insists that this is not the case. While the arbitrator has no
reason to disbelieve the Agency, the Union promptly objected to the tendered evidence, which therefore
must be excluded.

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