DECISION OF THE BOARD OF DIRECTORS
This matter is before the Board on exceptions filed on July 3, 2013, by the Office of the Architect of the Capitol (“AOC”), to an award by Arbitrator Margaret R. Brogan (“the Arbitrator”). Also, on July 3, 2013, the American Federation of State, County and Municipal Employees, Council 26, AFL-CIO (“Union”) filed a “Motion to Strike the Architect’s Exceptions.”1 On July 9, 2013, the AOC filed a “Response to Union’s Motion to Strike the Architect’s Exceptions,” and on July 12, the Union filed a “Reply to the Architect’s Response to Union’s Motion to Strike.” On August 2, 2013, the Union filed an “Opposition to Architect’s Exceptions.”
The Board of Directors has reviewed this matter pursuant to the requirements of 5 U.S.C. 7122, as adopted by section 220(a) of the Congressional Accountability Act [2 U.S.C. 1351(a)], and Part 2425 of the Regulations of the Office of Compliance.
On October 28, 2011, David Washington (“Washington”) and Thomas Jordan 2 (“Jordan”) (collectively “the grievants”), day laborers of the AOC, were involved in an incident which led to their terminations. The Arbitrator found that the grievants’ terminations were not for just cause and violated the collective bargaining agreement (“CBA”). The AOC was ordered to reduce Washington’s termination to a one-day suspension and Jordan’s termination to a written reprimand. The Arbitrator further ordered the AOC to immediately reinstate the grievants to their former or substantially similar positions and make them whole for their losses, including back pay and benefits.
The Arbitrator determined that the AOC failed to properly consider five Douglas factors 3 that were required under the CBA to determine the disciplinary penalties. Thus, the Arbitrator found that there was: 1) a lack of intent to steal; 2) insufficient notice that the conduct was impermissible; 3) significant tenure and job performance; 4) conduct that was not egregious or demonstrative of little potential for rehabilitation; and 5) inconsistency of the discipline with applicable table of penalties.
