By Barbara Haga, November 15, 2017
This month we are branching out from negligence to the larger issue of careless work performance by a Federal employee.
We’re going to begin with the case of the very scary High Voltage Electrician. The case is Kaminski v. Navy, 56 MSPR 393 (1993). High voltage basically means enough electrical energy that voltages high enough to inflict harm on living organisms.
The first important consideration in this case is the nature of the work of a High Voltage Electrician. The OPM Job Grading Standard for WG-2810 describes the work of the High Voltage Electrician as “installing, testing, repairing, and maintaining high voltage electric power-controlling equipment and/or distribution lines. The work requires knowledge of electrical principles, procedures, materials, and safety standards governing electrical systems above 600 volts.” The standard mentions that the typical work situation for this series is work in substations/power-generating facilities and on electrical distribution lines. Clearly, the worker in this category is not installing outlets in a building or maintaining wiring on a ship. This is a higher level of electrical work and the ramifications of mistakes are much more severe.
Kaminski was a High Voltage Electrician at Port Hueneme, California. He was removed for three charges, the first of which was careless workmanship. The others were AWOL and failure to follow his supervisor’s orders. In the initial decision, the AJ sustained all three charges. The careless workmanship charge was supported by four specifications: (1) While operating a forklift, the appellant negligently severed a valve on a transformer, causing 50-200 gallons of dielectric fluid containing a toxic to spill into the San Diego Bay, (2) he spilled nuts and washers into a transformer that he was repairing, (3) while traveling from one building to another, he lost nine pairs of high voltage rubber gloves, and (4) he filled a diesel truck with unleaded gasoline.
Two of the specifications were sustained. The agency proved that Kaminski spilled the nuts and bolts into the transformer. The AJ found that the appellant, as a journeyman Electrician, should have been aware of the serious consequences of spilling small metal objects into a transformer, and sustained that specification. The Board wrote,
Furthermore, the appellant was employed as a high voltage Electrician, and any mistakes made in such a position could be fatal to both the appellant and his co-workers. In this connection, we note that the appellant’s supervisor testified that the nuts and washers spilled into the transformer could have caused it to explode.
A co-worker testified that he did not want to work with Kaminski because he was afraid “to get killed.” The charge regarding putting the unleaded gasoline in the diesel engine was sustained. I read about what happens when gasoline goes in a diesel engine. The minimum requirement is draining the tank if the engine was never turned on. That’s an expensive repair by itself. If the engine was started and the truck driven, then problems mount up which could result in very expensive engine repairs.
The other two charges were not sustained. Just to be clear about the significance of the first charge, we would need to know about dielectric fluid. Dielectric fluid is used to prevent or rapidly quench electrical discharges. It is used in high voltage applications such as transformers, capacitors and high voltage cables to provide electrical insulation and to serve as a coolant. Dielectric fluids range from mineral oil to benzene. In Kaminski’s case, the dielectric fluid that spilled into the bay contained a toxin. But, Kaminski didn’t just spill the fluid, he was charged with hitting the transformer with a forklift which severed the valve and that allowed the dielectric fluid inside to go into the bay. Unfortunately, the AJ wasn’t convinced that Kaminski was responsible, ruling that the Navy failed to prove by preponderant evidence that Kaminski was responsible for the severing of the transformer valve.
The AJ also did not sustain the charge related to the loss of the nine pairs of high voltage gloves because there were a number of theories, including theft, to explain the disappearance of the gloves from the appellant’s truck. I checked a vendor of safety and industrial equipment website today and found that they are selling high voltage gloves in $50 to $100 range, although there were some that were over $200. In 1993 prices let’s say they were worth $50 a piece. That charge is loss of material worth $450 dollars. Compared to the other three charges in this case, that one was chicken feed. I think the agency would have been better off leaving that one out.
With three charges sustained, but half of the specifications of one of them not sustained, the AJ mitigated the removal to a ten-day suspension. This took place in spite of the fact that Kaminski had already had a 30-day suspension for misuse of a government vehicle just a few years earlier, during his brief four-year career. The Board overturned the AJ’s mitigation and reinstated the removal.
Their reasoning is interesting and is helpful for agencies considering misconduct that isn’t worthy of a removal in each instance but where there are several instances of careless work performance. The Board wrote in the Kaminski decision that the two sustained specifications, spilling the nuts and bolts into the transformer and putting the gasoline in the diesel engine “… indicates that the appellant’s carelessness fits into a pattern of behavior that presents a safety risk to other employees.” So, several specifications of not following instructions where there are safety concerns attached, or poor decisions that did not take into account agency requirements for completing work, or similar failures or omissions might add together to form a pattern of behavior that would support an adverse action. Haga@FELTG.com
[Editor’s Note: Two take-aways from this case. First, although it’s not supposed to, the Board sometimes reaches for mitigation when a number of specifications that are brought are not affirmed on appeal. MSPB’s caselaw establishes that it will independently consider whether mitigation is warranted if one or more CHARGES fail, but not SPECIFICATIONS. Unfortunately, the Board’s judges do not always see a distinction. As Barbara points out, sometimes it’s a good idea to consider reducing your case to the most serious specifications. Secondly, the Board’s decision to overturn its judge’s mitigation reaffirms that it is a rare case indeed in which a removal is mitigated to a suspension if there is a prior suspension in the record. Not always the case, but a good argument for building progressive discipline into a removal.]