[00:01:00] Speaker 03:
Okay, our final case this morning is number 15-30-67, Cleese Wallace versus FCC, Ms.

[00:01:06] Speaker 03:
Giles.

[00:01:11] Speaker 02:
Good morning.

[00:01:13] Speaker 02:
The petitioner in this case, Ms.

[00:01:15] Speaker 03:
Louise Cleese Wallace, was removed for a reason... Could you address the finality question off the bat, because isn't it the case that the arbitrator remanded here

[00:01:29] Speaker 03:
retained jurisdiction and once the case was resolved, again, at the agency level, these arguments that you're making here now could have been made before the agency, before the arbitrator and resulted in a final judgment.

[00:01:47] Speaker 03:
So what's the answer?

[00:01:48] Speaker 03:
Why is there a final judgment here?

[00:01:50] Speaker 02:
The arbitrator did remand the case and called her order interim, but that is an error.

[00:01:54] Speaker 02:
The issue before the arbitrator was whether Ms.

[00:01:57] Speaker 02:
Cleese Wallace violated paragraph 2C of the last chance agreement, and that issue has been finally and completely resolved.

[00:02:05] Speaker 03:
The government argues this case... I mean, finality doesn't require just a resolution of the issue.

[00:02:10] Speaker 03:
I mean, there are like a thousand cases that say that that doesn't make it final.

[00:02:15] Speaker 02:
But the removal here is improper.

[00:02:17] Speaker 02:
It's divested illegality.

[00:02:18] Speaker 02:
She should be put back to square one.

[00:02:20] Speaker 02:
Now, the agency might decide to remove her again, of course,

[00:02:24] Speaker 02:
in a month or five years from now for some new reason, that is the case in every single employment case.

[00:02:30] Speaker 02:
But if that makes it not final that the agency can take a second or a third bite at the apple, no employment case will be final.

[00:02:37] Speaker 01:
What do you understand the arbitrator have to have sent this issue back to the agency on the question of whether there was a violation on December 6th?

[00:02:47] Speaker 01:
We have December 6th and December 7th, which are floating around in this case.

[00:02:51] Speaker 01:
The arbitrator, by the time the case got to the arbitrator, apparently December 7th had somehow kind of evaporated and we were left with December 6th.

[00:03:01] Speaker 01:
The 2C claim, which was the notice of removal was predicated on 2C and not on, I guess it's 2D.

[00:03:07] Speaker 01:
Correct.

[00:03:08] Speaker 01:
Okay.

[00:03:09] Speaker 01:
Is she sending this case back for resolution of the 2D issue with respect to December 6th or do you think she's sending it back

[00:03:17] Speaker 01:
for resolution of the December 7th issue, which was noted as a basis for removal as well.

[00:03:23] Speaker 02:
I believe it's the former.

[00:03:24] Speaker 02:
She's sending it back for a prompt determination of whether 2D is violated, referencing the leave taken on December 6th.

[00:03:30] Speaker 01:
And you say, because 2D was never in the notice of removal, it can't be part of this proceeding.

[00:03:36] Speaker 01:
Correct.

[00:03:36] Speaker 01:
Therefore, her remand was ultraviolet, in effect.

[00:03:42] Speaker 02:
Correct, or functus officio.

[00:03:45] Speaker 01:
Functus officio is probably the more precise.

[00:03:47] Speaker 02:
The court and the agency might decide to proceed with removing her for 2D.

[00:03:51] Speaker 02:
But I would point out the oddity of that is she doesn't work there anymore.

[00:03:55] Speaker 02:
If the agency tries to issue a new and better worded removal letter, I guess it would be a little theoretical.

[00:04:00] Speaker 02:
I think that shows the odd.

[00:04:01] Speaker 01:
But it has a very practical impact.

[00:04:03] Speaker 01:
I take a non-theoretical impact in that I take it your position is if they should choose to go back

[00:04:10] Speaker 01:
and start again on 2D, or for that matter with December 7th, she nonetheless is entitled to back pay for the entire interim period.

[00:04:17] Speaker 01:
Yes.

[00:04:18] Speaker 01:
Right.

[00:04:18] Speaker 01:
So there's a lot of money at stake between a remand which would re-adjudicate 2D, which would not presumably require back pay, versus termination of the proceeding now and a new proceeding predicated on 2D or December 7th.

[00:04:34] Speaker 02:
I think this isn't that different than any removal case where if a removal is set aside, you get to go back to square one.

[00:04:39] Speaker 02:
Now, it may happen that the agency thinks it's a bad employee, they want to remove somebody again, again a month, five years from now.

[00:04:46] Speaker 02:
It doesn't mean they shouldn't be back to square one when the removal letter was itself in place.

[00:04:50] Speaker 01:
Well, let me ask you about that.

[00:04:51] Speaker 01:
With square one cases, I understand that if it's a simple case, we charge you with theft from petty cash, and ultimately the MSPB decides

[00:05:01] Speaker 01:
The case was not made by the agency.

[00:05:03] Speaker 01:
You go back, you get reinstated, and you get back paid.

[00:05:07] Speaker 01:
But this situation is a little different, and that's what's puzzling me.

[00:05:11] Speaker 01:
Here, she was charged with two different instances, and arguably even more, with a background of AWOL.

[00:05:22] Speaker 01:
She's charged with at least December 6 and December 7.

[00:05:27] Speaker 01:
December 7 is not pressed before the arbitrator.

[00:05:31] Speaker 01:
Does that mean that the agency then is in exactly the same positions they would be if they had never charged December 7th at all?

[00:05:40] Speaker 01:
And does it also mean where you have an alternative ground that you didn't put in an alternative legal basis for the conduct that you have involved that you can't press that on remand?

[00:05:53] Speaker 01:
And if so, what case says that?

[00:05:58] Speaker 01:
I couldn't find any that are like this.

[00:06:01] Speaker 02:
They seem close because it's 2C or 2D, but it's really, I think, no different than saying the agency did not properly word its removal letter.

[00:06:08] Speaker 02:
2C isn't a violation, but why don't you go back and see if maybe she committed theft.

[00:06:13] Speaker 02:
Maybe she misrepresented herself in some documents.

[00:06:16] Speaker 03:
I think the question was about the December 7th condo.

[00:06:18] Speaker 01:
I'm interested in your answer to both, but the December 7th is one that I'm particularly interested in.

[00:06:24] Speaker 02:
I believe the agency withdrew that at the arbitration, and it is simply not part of the case anymore.

[00:06:28] Speaker 01:
Forever, and they can't resurrect it.

[00:06:32] Speaker 01:
Could they resurrect it if they went back and gave her back pay and said, okay, December 7th, we never fully adjudicated that, now we're going to remove you based on December 7th?

[00:06:42] Speaker 02:
If they issued a new removal letter based on the specification two, I think they could try that again.

[00:06:47] Speaker 02:
We might have defenses to it.

[00:06:49] Speaker 01:
Even though it was in the initial removal letter.

[00:06:52] Speaker 01:
I mean, this is not a case that they didn't put... Right.

[00:06:54] Speaker 01:
She had notice of it.

[00:06:55] Speaker 01:
She had notice of it all along.

[00:06:56] Speaker 01:
Right.

[00:06:57] Speaker 01:
For reasons that are completely baffling to me, the agency dropped that at the arbitration point, but are they entitled to say, we want to continue with that now that we've lost on the first issue?

[00:07:11] Speaker 02:
So she did have notice of the December 7th issue.

[00:07:14] Speaker 02:
So they tried to go back and say you had notice of that.

[00:07:18] Speaker 03:
What did they say when they dropped it?

[00:07:21] Speaker 02:
That I don't know.

[00:07:21] Speaker 02:
I don't think it's in the transcript.

[00:07:23] Speaker 02:
I assume it was off the book.

[00:07:24] Speaker 01:
It's in their brief before the arbitrator they just said.

[00:07:28] Speaker 02:
It's conceded they withdrew it, but I don't know what their thinking was on that.

[00:07:33] Speaker 02:
On terms of case law, I feel this case is much like the Goh's case.

[00:07:37] Speaker 02:
The agency said someone breached the last chance agreement.

[00:07:40] Speaker 02:
This court said no breach occurred, and so it ordered reinstatement.

[00:07:44] Speaker 02:
Or like the Sullivan and the Rider cases we cite, where there's due process problems, court sets the removal aside and orders reinstatement.

[00:07:57] Speaker 01:
Suppose that you've got a case in which somebody is charged

[00:08:03] Speaker 01:
take my example with theft from petty cash.

[00:08:07] Speaker 01:
And the agency in the removal letter asserts that offense of theft from petty cash, but then cites the wrong regulation that governs theft from petty cash.

[00:08:24] Speaker 01:
And nobody notices that until they get up to the MSPB or the arbitrator.

[00:08:28] Speaker 01:
And the arbitrator says, nope, you cited the wrong regulation.

[00:08:33] Speaker 01:
And the agency says, ah, OK.

[00:08:37] Speaker 01:
Do you think in that situation that the agency would be allowed, it would be permissible under the law that we've developed on returning to status quo for the agency just to proceed again without reinstatement and so forth on the original charge?

[00:08:57] Speaker 01:
Given that the charge itself, the conduct, had been noted, it's just that the specification of the

[00:09:03] Speaker 01:
nature of the offense, the clause of the regulations had not.

[00:09:08] Speaker 02:
I think the issue would be what the defenses are.

[00:09:10] Speaker 02:
If the employee had every chance to refute the charge, and if there's some new element in the regulations that the employee didn't know about, then it would be a problem.

[00:09:17] Speaker 02:
If the defense would be the same regardless, and I think the arbitrator said here, the defense's 202D specification would be different than 202C, and that's why there's a due process problem.

[00:09:30] Speaker 02:
So I think the government's opposition here all stems from what the issue is.

[00:09:35] Speaker 02:
And as we have said, the issue is whether she violated 2C of the last chance agreement.

[00:09:38] Speaker 02:
The government says it's whether her conduct, quote, breached the LCA, period, end quote.

[00:09:44] Speaker 02:
All their arguments stem from that.

[00:09:45] Speaker 02:
Maybe it's not final.

[00:09:46] Speaker 02:
Maybe the arbitrator appropriately held onto jurisdiction.

[00:09:49] Speaker 02:
But we think the issue is what's in the removal letter.

[00:09:52] Speaker 02:
Employees have to have notice of the charges against them.

[00:09:57] Speaker 02:
There are no further questions.

[00:10:00] Speaker 03:
OK.

[00:10:00] Speaker 03:
Thank you, Ms.

[00:10:00] Speaker 03:
Powell.

[00:10:04] Speaker 03:
Ms.

[00:10:04] Speaker 03:
Kidd Miller.

[00:10:07] Speaker 00:
Good morning, and may it please the court.

[00:10:09] Speaker 00:
We continue, of course, to urge this court to dismiss this appeal as an improper interlocutory appeal.

[00:10:15] Speaker 00:
But before turning to that procedural question, I want to clarify a couple of factual points in the record that are important context for the arbitrator's decision, and I think help demonstrate why even if this court were to reach the question whether remand was proper here, which again we don't think is properly before the court,

[00:10:32] Speaker 00:
shows that that remand was proper and reasonable under these circumstances.

[00:10:38] Speaker 00:
First, the arbitrator did not, as the union asserts, view this as a case where the removal had been set aside.

[00:10:48] Speaker 00:
The arbitrator did not set aside the removal.

[00:10:51] Speaker 00:
To the contrary, the arbitrator found that the basic facts underlying the charge, which were always the same, they were failure AWOL as a result of failure to bring in medical documentation

[00:11:01] Speaker 00:
supporting the December 6th leave request.

[00:11:04] Speaker 00:
The arbitrator found that those facts had all been proven.

[00:11:08] Speaker 00:
And this is at page 11 of the joint appendix.

[00:11:14] Speaker 00:
The arbitrator provides a full paragraph discussion, makes credibility determinations, and reaches the conclusion that those facts were proven.

[00:11:22] Speaker 00:
Also made a finding on the previous page, J10, that Ms.

[00:11:27] Speaker 00:
Clees-Wallace understood she was required to submit such documentation.

[00:11:32] Speaker 00:
Nonetheless, recognizing that the agency in its initial removal letter cited the wrong provision, but did correct that provision while the matter was still pending before the agency, the arbitrator looked at this overall, said... When did they correct the provision?

[00:11:49] Speaker 00:
The agency agreed at the step three grievance decision after Ms.

[00:11:56] Speaker 00:
Cleese Wallace came in and made her response to the removal letter.

[00:12:00] Speaker 00:
The agency agreed and it's...

[00:12:02] Speaker 00:
Step 3 decision letter, which begins at page 27 of the record, that the correct citation should have been 2D and that as the arbitrator affirmed that the basic facts were the same here and affirmed.

[00:12:18] Speaker 00:
So specifically the 2D portion

[00:12:36] Speaker 00:
I apologize.

[00:12:37] Speaker 01:
Let me just make sure I... Are you looking for the step three grievance decision?

[00:12:42] Speaker 00:
Yes, Your Honor.

[00:12:42] Speaker 01:
And if you look at... JA 31 is where the discussion... Yes, Your Honor.

[00:12:46] Speaker 00:
JA 31.

[00:12:47] Speaker 00:
The deciding official... This is the agency provided the first notice that it meant to have cited paragraph 2D.

[00:12:56] Speaker 00:
Both paragraphs 2C and 2D of the last chance agreement pertain to what kind of documentation you have to bring in for a leave request.

[00:13:02] Speaker 00:
Now, an important difference between this and the typical Chapter 75 case is that Ms.

[00:13:08] Speaker 00:
Cleese Wallace then, under the collective bargaining agreement, had an additional opportunity at this point in time to make another response to the agency while she was still in the grievance procedure.

[00:13:20] Speaker 00:
The collective bargaining agreement, so that page 45 of the record, explains that to the extent the court

[00:13:30] Speaker 00:
might accept Ms.

[00:13:31] Speaker 00:
Cleese-Wallace's view that the 2D-2C distinction creates an entirely new issue.

[00:13:35] Speaker 00:
The collective bargaining agreement, that this is a top right-hand paragraph at page 45 of the record, explains that the union will never be precluded from responding to new issues raised in a management decision at any step of the grievance process.

[00:13:52] Speaker 00:
Now, Ms.

[00:13:52] Speaker 00:
Cleese-Wallace did not at that time

[00:13:55] Speaker 00:
request an additional response, the agency didn't give her that, and that clearly disturbed the arbitrator, and the arbitrator found that reasonably, Ms.

[00:14:02] Speaker 00:
Pieswald should have had an opportunity to respond, and that's what she has remanded this matter to have happen.

[00:14:09] Speaker 00:
And that's where the matter really should stand today, instead of being before this court.

[00:14:14] Speaker 00:
for Ms.

[00:14:14] Speaker 00:
Cleese Wallace to present her arguments on 2D.

[00:14:17] Speaker 03:
Very importantly, the arbitrator found... It sounds like an argument on your part that the arbitrator made an error in remanding it and that under the collective bargaining agreement, that wasn't necessary, that the 2D issue was raised and she had an opportunity to respond to that in the course of the arbitration.

[00:14:35] Speaker 03:
and that no remand was necessary.

[00:14:37] Speaker 03:
Is that my understanding that correctly?

[00:14:40] Speaker 00:
Well, the facts of that, yes.

[00:14:42] Speaker 00:
I'm not contesting that the arbitrator found harmful error.

[00:14:45] Speaker 00:
We accept that finding.

[00:14:47] Speaker 00:
But I think that's an important, provides additional important context to explain why the arbitrator remanded here, to give Ms.

[00:14:54] Speaker 00:
Cleese Wallace that opportunity that the arbitrator felt she should have had.

[00:14:58] Speaker 00:
At page 13 of the appendix, this is the arbitrator's decision, the arbitrator found that

[00:15:05] Speaker 00:
factual questions are posed by this section referring to 2D, and that those questions had been averted to at the hearing, but not fully resolved.

[00:15:15] Speaker 00:
So I think that also explains that the arbitrator was looking for some more factual development on this issue, which she clearly contemplated would happen when this was remanded back to step three of the grievance procedure.

[00:15:28] Speaker 01:
Let me ask you this question, and this is more directed to the finality, but it may have some application to both issues.

[00:15:36] Speaker 01:
Assume you had a very clean case in which I was charged with theft from the agency, and in the course of which there was evidence of other thefts that I had committed other than the one I was charged with.

[00:15:55] Speaker 01:
It turns out that the MSPB finds that I was not guilty of the theft that was charged.

[00:16:04] Speaker 01:
It just wasn't proved.

[00:16:06] Speaker 01:
Can the MSP then say, okay, go back and in the context of this single proceeding, go back and consider charging the other thefts.

[00:16:20] Speaker 01:
Would that be permissible or would it be one and done?

[00:16:24] Speaker 01:
You made your claim that the one theft was listed in the removal letter.

[00:16:29] Speaker 01:
All you've done is press that one theft as your charge and while there's evidence of these other thefts,

[00:16:35] Speaker 01:
that wasn't part of the claim, I have to be reinstated, which would be the case.

[00:16:40] Speaker 00:
Well, I think we need to know two more facts.

[00:16:44] Speaker 00:
And first, we need to know, did the employee understand that what was really being charged as well was not theft of the stapler, but theft of the computer, for example?

[00:16:54] Speaker 00:
So we're assuming a harmful error here.

[00:16:56] Speaker 01:
The charge was very clear.

[00:16:57] Speaker 01:
It was theft of the stapler, let's say.

[00:17:00] Speaker 00:
And if the appellant was never on notice, that the computer was also part of the charge.

[00:17:05] Speaker 00:
If we're assuming that this is the typical Chapter 75 removal of the proposal notice, then yes, that is on all fours with the kinds of cases.

[00:17:14] Speaker 01:
It happens all the time.

[00:17:15] Speaker 00:
The board has said there's been a harmful notice error here.

[00:17:19] Speaker 01:
Now, if that happens and the board sends it back and the employee says, wait a minute, you have no authority to send it back, you would agree they have no authority to send it back, right?

[00:17:29] Speaker 01:
In the situation where I think you just agreed to that, if there's only one clear charge and the board sends it back for further proceedings, the employee could say, no, no, you can't do that, right?

[00:17:45] Speaker 01:
Right.

[00:17:45] Speaker 01:
The employee would come to us with that appeal and say, look what the board did.

[00:17:50] Speaker 01:
They can't do that, right?

[00:17:53] Speaker 01:
I think that's right.

[00:17:53] Speaker 01:
Right.

[00:17:54] Speaker 01:
And would that decision of the board

[00:17:57] Speaker 01:
be reviewable by us at that point because the agency had acted, whether you want to call it ultra virus or functus officio, the MSPB had acted without authority doing something which they were not lawfully entitled to do.

[00:18:13] Speaker 01:
Would that be a final decision of the MSPB reviewable by us?

[00:18:18] Speaker 00:
I think my answer would be the same.

[00:18:21] Speaker 00:
The same as what?

[00:18:22] Speaker 00:
As it is in this case.

[00:18:23] Speaker 01:
You would say that therefore the MSPB can send it back

[00:18:27] Speaker 01:
And the employee has to wait until that long proceeding, which was totally unjustified and unwarranted, is finished before that case ultimately gets resolved by us?

[00:18:44] Speaker 00:
I think there would still be an argument that the remand should go forward.

[00:18:50] Speaker 01:
Is that the government's position?

[00:18:53] Speaker 00:
No, I don't want to say that's firmly my position, because I think that is a much tougher

[00:18:57] Speaker 00:
a much tougher case.

[00:18:57] Speaker 03:
The problem is how do you distinguish between remands which are proper and remands which are improper?

[00:19:03] Speaker 03:
To say that there's a lack of finality if they exceed their authority in remanding, that potentially is a decision which encompasses a lot of remands where the argument is there was no authority to remand.

[00:19:19] Speaker 00:
I think this question focuses on what are the standards for finality and Ms.

[00:19:25] Speaker 00:
Cleese Wallace

[00:19:26] Speaker 00:
has not tried to fit this case into any kind of exception.

[00:19:30] Speaker 00:
And it hasn't pointed to cases, for example, saying that an improper remand somehow defeats the requirement of penalty.

[00:19:40] Speaker 03:
Every time somebody's challenging a remand, they're arguing it's improper, right?

[00:19:43] Speaker 00:
Right.

[00:19:44] Speaker 00:
But certainly there are plenty of remands where that one party feels was horribly improper for some reason or the other, and yet it still falls within that general rule that a remand order will not be

[00:19:56] Speaker 00:
And the arbitrator here teed up some specific factual issues for the agency to consider on remand.

[00:20:05] Speaker 04:
The reason the remand order isn't appealable is because of lack of finality.

[00:20:10] Speaker 04:
And there's a distinction in this instance.

[00:20:13] Speaker 00:
Right.

[00:20:14] Speaker 04:
In the instance we're drawing, but to the example.

[00:20:17] Speaker 00:
Right, well in this case it's very different in some respects from the hypothetical because here the arbitrator clearly viewed

[00:20:26] Speaker 00:
this all to be part of the same underlying charge, whether the agency cited 2C or 2D.

[00:20:34] Speaker 00:
She treated it all as part of the same issue.

[00:20:37] Speaker 00:
She identified the issue as one of breach as the scores were not remanded, retained jurisdiction.

[00:20:43] Speaker 04:
And I do want to make a... Why was the, I think, 3.5 hours on 7 December

[00:20:51] Speaker 04:
abandoned if you know.

[00:20:54] Speaker 00:
We don't have in the record why it was withdrawn but it was withdrawn and my understanding... But what's the consequence of that?

[00:21:00] Speaker 03:
Does that mean that that's over and done with and that can't be addressed on the remand?

[00:21:05] Speaker 00:
Yes, Your Honor.

[00:21:06] Speaker 00:
And the agency, my understanding, has no intention to try to revisit that.

[00:21:12] Speaker 01:
So this remand would be focused entirely on the December 6th issue with respect to date?

[00:21:17] Speaker 00:
Yes, Your Honor.

[00:21:20] Speaker 00:
particularly with the factual questions that the arbitrator noted.

[00:21:24] Speaker 00:
So again, in context, and I do, maybe it doesn't fit in this part of the argument, but I'd be remiss if I didn't at least mention that I do want to point out that the arbitrator did not find a due process, a constitutional due process violation here.

[00:21:36] Speaker 00:
She did find a harmful procedural error.

[00:21:39] Speaker 00:
And to the extent that our brief repeated and adopted that due process language, I apologize.

[00:21:45] Speaker 00:
That's not correct.

[00:21:46] Speaker 00:
The arbitrator didn't

[00:21:47] Speaker 00:
used the phrase due process.

[00:21:49] Speaker 00:
Instead, she cited Ward, this court's decision in Ward, and discussed harmful error.

[00:21:54] Speaker 00:
And of course, as Ward explains, if there has been a constitutional due process violation, then the harmful error analysis is inapplicable.

[00:22:02] Speaker 00:
So by proceeding to look at harmful error, we know that the arbitrator did not find a due process violation.

[00:22:08] Speaker 00:
So instead, in context, the arbitrator was viewing this as a situation where Ms.

[00:22:14] Speaker 00:
Cleese Wallace understood what she was supposed to do.

[00:22:17] Speaker 00:
She hadn't done it.

[00:22:18] Speaker 00:
She was asked to bring in medical documentation supporting her leave request that took place on December 6th.

[00:22:25] Speaker 00:
And by the 28th of December, still had not produced that documentation.

[00:22:29] Speaker 00:
That's when the agency converted it to AWOL.

[00:22:32] Speaker 00:
And the agency told Ms.

[00:22:35] Speaker 00:
Cleese Wallace, while the matter was still pending before the agency, that it meant to cite 2D.

[00:22:40] Speaker 00:
So against that whole context, the arbitrator sent it back

[00:22:44] Speaker 00:
And we'd ask that this court respect that remand and find that this current appeal is not presently proper.

[00:22:52] Speaker 00:
But should Ms.

[00:22:53] Speaker 00:
Cleese Wallace lose below and before the arbitrator, she could, in fact, come back to this court and press some of these same arguments at that time.

[00:23:02] Speaker 03:
I'm a little confused as to what 2D is saying here.

[00:23:08] Speaker 03:
Could you help me understand that better?

[00:23:10] Speaker 03:
Yes, sir.

[00:23:12] Speaker 03:
If I recall correctly, it doesn't just say when you have a sick child, you have to provide medical documentation.

[00:23:19] Speaker 03:
It cross-references another document.

[00:23:22] Speaker 00:
That's right.

[00:23:23] Speaker 00:
Paragraph 2D incorporates four different articles of the collective bargaining agreement.

[00:23:35] Speaker 00:
And the one that is relevant here is, of course, in the agreement in the record, but it's also reproduced

[00:23:43] Speaker 00:
in the arbitrator's decision at the bottom of page eight and over onto the top of page nine.

[00:23:49] Speaker 00:
And under this article, the operative provision for this case is E, which is on page nine of the joint appendix.

[00:23:57] Speaker 00:
It says that as a, looking at the middle of the paragraph here, first sets forth a general rule that if you have sick leave for three days or less, you do not need to bring in a medical certificate.

[00:24:09] Speaker 00:
But there is an unless, unless the employee has been warned in writing about an abuse or suspected abuse of sick leave and says an employee will not be issued a written warning unless he or she has first been counseled by his or her supervisor.

[00:24:24] Speaker 00:
And this is the language that the arbitrator was keying in on later at page 13 of the record and saying that there were some factual questions here that had been averted to but not fully developed at the hearing and that the arbitrator is expecting will be developed

[00:24:39] Speaker 00:
by the agency.

[00:24:41] Speaker 00:
I think another important part of the context here.

[00:24:43] Speaker 03:
And so what is the factual issue that's going to be explored?

[00:24:49] Speaker 00:
Whether she'd been properly warned, whether there was any kind of counseling requirement, whether that counseling had taken place so as to invoke this provision of the basic negotiated agreement.

[00:25:00] Speaker 03:
Wouldn't the last chance agreement be

[00:25:03] Speaker 00:
That's certainly the agency's position.

[00:25:06] Speaker 00:
In addition, the actual request of December 6, which is not in the appendix, but it is exhibit K in the full record that was provided, had a handwritten request from the supervisor to provide supporting documentation.

[00:25:27] Speaker 00:
But there was some testimony by the union president that ordinarily, what in her experience this refers to,

[00:25:33] Speaker 00:
is a leave restriction.

[00:25:35] Speaker 00:
So as the arbitrator said, this was averted to but not fully developed.

[00:25:40] Speaker 00:
One last contextual point that I'd like to make, if I may, is that it is important to keep in mind that this is ultimately both a last chance agreement and coming through the grievance

[00:25:50] Speaker 00:
process.

[00:25:51] Speaker 00:
And so I think it also makes sense here that the arbitrator remand is keeping in spirit with the nature of collective bargaining to give the parties an opportunity to address these issues and see if they could resolve them.

[00:26:02] Speaker 01:
The briefs don't cite any cases that really are, I would say, on point.

[00:26:08] Speaker 01:
I think it's fair to say.

[00:26:09] Speaker 01:
You're not aware, and I couldn't frankly find anything that was close enough to this case to give me comfort one way or the other.

[00:26:19] Speaker 01:
Are you aware of any case that addresses the question of a remand in the context, as we've just discussed it here, of a charge that is not sustained, but there's a related potential charge which a remand is sent back for?

[00:26:42] Speaker 00:
No, Your Honor.

[00:26:44] Speaker 01:
Either way, saying you can or you can't do it.

[00:26:47] Speaker 00:
Now, there are cases where the board... Even MSPB.

[00:26:53] Speaker 01:
I'm looking for any case.

[00:26:54] Speaker 00:
There are cases where the board clearly considered two things to be completely separate charges, which again, we're saying that we don't believe the arbitrator considered it to be such here.

[00:27:04] Speaker 00:
In those cases, then the board has remanded.

[00:27:10] Speaker 00:
I mean, excuse me, has reversed.

[00:27:14] Speaker 00:
Right.

[00:27:14] Speaker 00:
So GOES, which the union mentioned in argument, is one example.

[00:27:19] Speaker 00:
And in that case, the agency had charged the appellant with violating a... Oh, I apologize.

[00:27:26] Speaker 00:
I see that I'm over time.

[00:27:29] Speaker 00:
No, you can continue to answer.

[00:27:30] Speaker 00:
In GOES, the agency charged the appellant with violating a provision that forbade drinking in public in uniform.

[00:27:38] Speaker 00:
And then for the first time... And this is another difference.

[00:27:40] Speaker 00:
Most of these cases, for the first time at the board,

[00:27:43] Speaker 00:
the agency said, oops, we meant some other charge.

[00:27:46] Speaker 00:
So that's another important distinction here, that we have this unique provision of the collective bargaining agreement that would have allowed some additional development of this issue before the agency.

[00:27:57] Speaker 03:
I'm trying to understand what the scope of the issue is on the remand.

[00:28:05] Speaker 03:
Is the scope of the issue on the remand basically whether the last chance agreement

[00:28:10] Speaker 03:
satisfies the warning requirement?

[00:28:12] Speaker 03:
Is there anything more to it than that?

[00:28:15] Speaker 00:
It's restricted to whether this leave request on December 6th was properly charged by the agency as AWOL in breach of the agreement.

[00:28:26] Speaker 03:
I understand.

[00:28:28] Speaker 03:
But I'm trying to find out exactly what the issue is.

[00:28:32] Speaker 03:
Your contention is the last chance agreement qualifies as a warning so 2D applies.

[00:28:37] Speaker 03:
Their position is that it doesn't.

[00:28:39] Speaker 03:
Is there anything more to it than that?

[00:28:40] Speaker 00:
That's right.

[00:28:41] Speaker 00:
I expect that the, again, this is my hypothesis here, that the argument might make an argument as to whether there was proper counseling because the provision of the collective bargaining agreement also requires counseling before requiring this written documentation of leave.

[00:28:56] Speaker 04:
I believe they also made an argument at the hearing that the... My recollection is, at least in the red brief statement of the facts you referenced,

[00:29:07] Speaker 04:
prior counseling, but apparently not as to this issue?

[00:29:13] Speaker 00:
Well, there was certainly counseling as to the leave issues in general.

[00:29:17] Speaker 00:
I don't know the answer about whether 2D was the subject of specific counseling.

[00:29:21] Speaker 00:
I expect the union might also, again, I don't know, have arguments along the lines that the supervisor did not consistently impose these requirements, and so that that might somehow, to lax and then decide to focus on this date

[00:29:37] Speaker 00:
was unfair in some way or violated some provision of the agreement.

[00:29:40] Speaker 00:
So there's still a number of things that can be developed on remand here.

[00:29:43] Speaker 01:
But to return, you cite the Goh's case, and I guess there are others with disparate offenses involved.

[00:29:51] Speaker 01:
You don't know of any case, I take it, in which the position you are arguing for here was sustained.

[00:29:59] Speaker 01:
That is to say, if there are related charges, that they can be the subject of a remand when

[00:30:07] Speaker 01:
the second of the two charges was not part of the notice of removal.

[00:30:14] Speaker 00:
Again, not where it's a completely different charge.

[00:30:16] Speaker 01:
But even if they're closely related, do you know of any case in which, for example, the failure to cite the right regulation goes up to the MSPB?

[00:30:27] Speaker 01:
The MSP says, well, the government cited the wrong regulation, therefore we're throwing this out.

[00:30:30] Speaker 01:
But we're going to send it back for them to cite the right regulation and decide whether they remove the person.

[00:30:35] Speaker 01:
No reinstatement, no back pay.

[00:30:37] Speaker 01:
Any case like that?

[00:30:38] Speaker 00:
No, there are some where the board says, the board doesn't demand perfection in notices.

[00:30:44] Speaker 00:
So there have been cases where the board ultimately says, well, this wasn't a harmful error.

[00:30:48] Speaker 00:
Everybody understood.

[00:30:49] Speaker 00:
And I think that even though the arbitrator made the ultimate finding here that this was harmful, that by saying that factual issues have been raised and phrasing the issue as one broadly of breach and all of her other actions, retaining jurisdiction, those are all indications that she considered this to be

[00:31:07] Speaker 00:
sufficiently close that it was part of the same charge.

[00:31:11] Speaker 01:
So it's sloppy charging, but sloppy charging doesn't necessarily mean you go back to square one with reinstatement, et cetera.

[00:31:20] Speaker 00:
I think I'd agree with that, yes.

[00:31:22] Speaker 00:
Thank you.

[00:31:23] Speaker 03:
Okay, thank you, Ms.

[00:31:23] Speaker 03:
Kidmore.

[00:31:26] Speaker 03:
Ms.

[00:31:26] Speaker 03:
Jones?

[00:31:27] Speaker 00:
Just briefly.

[00:31:28] Speaker 03:
Before you start on your rebuttal, could you state what you view the scope of the issues as being on the remand?

[00:31:38] Speaker 02:
The arbitrator's remand?

[00:31:40] Speaker 03:
Yeah.

[00:31:40] Speaker 03:
What do you think the issue is on the remand?

[00:31:44] Speaker 02:
To determine whether paragraph 2D of the last chance agreement.

[00:31:48] Speaker 03:
Oh, I understand that.

[00:31:49] Speaker 03:
But what does that depend on?

[00:31:50] Speaker 03:
Does that depend on whether the last chance agreement constitutes a warning, or what are the actual issues?

[00:31:58] Speaker 02:
I think that would involve, she would entitle a written warning, so did the last chance agreement equal that, or was there some other warning?

[00:32:06] Speaker 02:
and did she get the required counseling ahead of time?

[00:32:11] Speaker 02:
Just briefly, counsel mentioned that maybe due process wasn't mentioned in the arbitrator's order.

[00:32:16] Speaker 02:
The arbitrator does cite the word constitutional and cites ward.

[00:32:19] Speaker 02:
The only constitutional provision in ward was due process, so I think that was clearly addressed by the arbitrator.

[00:32:24] Speaker 02:
She also said there are procedural problems because there are regulations requiring notice.

[00:32:30] Speaker 02:
I believe the agency counsel suggested that somehow we should have asked the deciding official to

[00:32:35] Speaker 02:
reconsider or revisit the issue once he made the mistake of saying, well, 2C wasn't violated, but maybe 2D was.

[00:32:43] Speaker 02:
But I think the basic negotiating agreement on the page she cited says, after a deciding official makes their decision, the next step is arbitration.

[00:32:51] Speaker 02:
So that's what we did.

[00:32:52] Speaker 02:
I just think this circles back to the key issue.

[00:32:54] Speaker 02:
The notice has to state the charges.

[00:32:56] Speaker 02:
When that's not done, the removal needs to be set aside.

[00:33:02] Speaker 01:
OK.

[00:33:02] Speaker 01:
Well, let me ask one final question.

[00:33:06] Speaker 01:
Circling back to the finality issue, how would you distinguish this case and the class of cases in which this falls from a case in which one simply is arguing, well, it was inappropriate to remand on this case because I should have won.

[00:33:25] Speaker 01:
A district court case, let's say, in which one's argument is that the district court sent this back, but there was really no need to, given the state of the evidence.

[00:33:33] Speaker 01:
The district court sent it back to an agency, an APA type case.

[00:33:37] Speaker 02:
I think part of the issue is harm.

[00:33:39] Speaker 02:
Did the employee have the notice, have the chance to refute the charges?

[00:33:43] Speaker 01:
That may go to the question of whether it was correct or not, but is there a category of remands that you would say, that's not final, where you think it was wrong to remand, but you nonetheless say, yeah, but there's nothing we can do about it because it's not final.

[00:33:59] Speaker 01:
It was just a remand versus this case in which you're saying this was

[00:34:03] Speaker 01:
functus officio, and therefore not something that the arbitrator had the power to remand.

[00:34:09] Speaker 01:
And therefore what the arbitrator did was a final decision, notwithstanding the arbitrator's statement of the contrary.

[00:34:16] Speaker 01:
I'm looking for a category, what you see as that category, which presumably is less than all remands.

[00:34:23] Speaker 02:
I'm not sure this answers your question, but I know we cited like the AFG case in a footnote in our brief where sometimes arbitrators remand very ministerial matters like the details of the remedy and we are not taking issue with those.

[00:34:35] Speaker 02:
I'm not sure if that answers your question.

[00:34:38] Speaker 02:
Okay.

[00:34:39] Speaker 03:
Thank you, Ms.

[00:34:39] Speaker 03:
Charles.

[00:34:39] Speaker 03:
Thank both counsels.

[00:34:40] Speaker 03:
The case is submitted.

[00:34:42] Speaker 03:
That concludes our session for today.

[00:34:45] Speaker 00:
All rise.

[00:34:46] Speaker 00:
The Honorary Court is adjourned from day to day.