In In the Matter of Arbitration Between IAFF Local F-297 and Department of the Air Force, 11th Wing Andrews Air Force Base, FMCS Case No. 11-03639 (June 13, 2012), an arbitrator reversed the removal of Jason Mortimer, a GS-0081-07, firefighter, from his position with the Air Force. In so reinstating Mortimer, the arbitrator determined that Mortimer’s removal was not for just and sufficient case so as to promote the efficiency of the service. The arbitrator’s conclusion was based primarily on the fact that Mortimer was not given a fair opportunity to comply with an agency order. Mortimer’s failure to complete this order was the principal grounds upon which the agency based its removal.

On February 9, 2011, Mortimer’s first-line supervisor issued him an order to complete a particular type of firefighter training and achieve a particular type of certification in conjunction with that training by February 25, 2011. Notable in this case is the fact that Mortimer had previously been issued the order to achieve this training and certification on three separate occasions, dating back to December 18, 2009. On each occasion, Mortimer had failed to achieve the training and certification, and he had been issued a letter of warning, written reprimand, and 14-day suspension, respectively, for each time that he failed to comply with the order.

Despite the agency’s adherence to progressive discipline (escalating the severity of the penalty for each subsequent act(s) of misconduct), the arbitrator determined that on its fourth attempt to have Mortimer obtain the training and certification, the agency took a short-cut and set Mortimer up for failure. In so finding, the arbitrator accepted the union’s argument that when Mortimer received the order on February 9, 2011, his supervisor was aware of the fact that Mortimer would be taking prearranged leave from February 10-15, 2011. Mortimer was also scheduled to be off on February 24, 2011. Thus, excluding weekend days, Mortimer would have had only six days to complete the training and certification. The arbitrator took note of the fact that the training and certification required 48 hours of training, as well as successful completion of examinations. He also recognized the fact that Mortimer worked to comply with the order by completing the 48 hours of training, and that there was some wrangling between Mortimer and his supervisor about scheduling his tests.

The arbitrator ordered the retroactive reinstatement of Mortimer with back pay, benefits and interest. He also ordered the agency as the losing party to pay the arbitrator’s fees and expenses. As the prevailing party, the union was given the opportunity to file a request for attorney fees while the agency may file a reply. The union and Mortimer were represented by Daniel T. Raposa and Edward H. Passman of Passman & Kaplan.

This case serves as a reminder that an employee’s past misconduct (including instances of failure to follow supervisory directives and insubordination) is not a blank check for management to cut corners in removing that employee. After receiving orders, employees must be given a fair opportunity to comply with them.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.passmanandkaplan.com/CM/Custom/Federal-Employees-Survival-Guide.asp. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.