Border Patrol Agent Cleared of Misconduct and Wins Grievance Against the Agency
Back Pay and Attorney’s Fees Awarded
On November 11, 2012, a Border Patrol Agent assigned to the Sarita Border Patrol Checkpoint was required to use force on a suspect to maintain discipline and order and to prevent the escalation of a potentially volatile situation.
The Agent, acting as Team Leader of the shift ordered an unruly suspect to sit down in the crowded processing area. The suspect refused to comply and began to become verbally and physically aggressive. Due to a number of unrestrained suspects in the processing area, the suspect’s behavior presented a security and officer safety issue. Repeated verbal commands were ignored by the suspect so the Agent tried to seat the suspect by using his hands and applying downward pressure on his shoulders. The suspect then punched and kicked the Agent and the Agent responded with a take down and strike of his own. That night, the Agent reached out to Edinburg Attorney Roberto M. Garcia who travelled to the checkpoint and provided legal assistance.
Two days later the Chief of the Rio Grande Valley Border Patrol Sector served on the Agent what is referred to as a “Decertification Letter” alleging misconduct. In his letter, the Chief stripped the Agent of his uniform, badge, credentials and firearm, removed all of his law enforcement authority and prohibited him from working any overtime hours. The Chief then assigned the Agent to work in the station garage servicing vehicles. Informal efforts to reverse this decision were ignored by the Agency. A grievance was filed on behalf of the Agent claiming Agency violations of the Collective Bargaining Agreement and the Agency Use of Force Policy Handbook. The grievance was ignored by the Agency. On January 25, 2013, arbitration was invoked on behalf of the Agent. In the meantime, the Agent was extensively investigated by the Office of the Inspector General and the CBP Office of Internal Affairs who found no misconduct.
One year later almost to the day, on November 12, 2013, Mr. Garcia and the Agent went to arbitration in Kingsville, TX for two days before Arbitrator William Hartsfield. Arb. Hartsfield issued his decision and award on April 20, 2015. In his decision Arb. Hartsfield found that the unreasonably long investigation of the Agent and the failure to provide notice at the earliest practicable date of a decision to discipline or not to discipline were unjustified or unwarranted personal actions which violated the Collective Bargaining Agreement. Arb. Hartsfield ordered the Agency to make the Agent whole for his lost earnings. Arb. Hartsfield also awarded reasonable and necessary attorney’s fees.
The Agency then filed an appeal of the arbitrator’s decision to the Federal Labor Relations Authority (FLRA) in Washington D.C. claiming that the arbitrator’s decision was wrong based on management rights. On June 2, 2016, almost three and a half years after the incident, the FLRA rendered its decision against the Agency and in favor of the Agent.