Immigration and Naturalization Service (Agency) and American Federation of Government Employees, AFL-CIO (Union)

 



[ v08 p248 ]
08:0248(53)AR
The decision of the Authority follows:


 8 FLRA No. 53
 
 IMMIGRATION AND NATURALIZATION
 SERVICE
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Union
 
                                            Case No. O-AR-177
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR BICKNELL J. SHOWERS FILED BY THE AGENCY UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. SEC.
 7122(A)) (THE STATUTE) AND PART 2425 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR PART 2425).  THE UNION FILED AN OPPOSITION.
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER
 CONCERNS THE SUSPENSION OF THE GRIEVANT, A BORDER PATROL AGENT, FOR 10
 DAYS FOR OFF-DUTY MISCONDUCT.  A GRIEVANCE WAS FILED AND ULTIMATELY
 SUBMITTED TO ARBITRATION DISPUTING THE SUSPENSION.
 
    THE PARTIES SUBMITTED TO THE ARBITRATOR THE FOLLOWING ISSUE:
 
    DID THE SERVICE SUSPEND (THE GRIEVANT) FOR TEN DAYS FOR JUST AND
 SUFFICIENT CAUSE AND ONLY
 
    FOR SUCH REASONS WHICH PROMOTED THE EFFICIENCY OF THE SERVICE?
 FINDING THAT "THERE (WAS) NO EVIDENCE THAT THE GRIEVANT'S CONDUCT . .  .
 CAUSED ANY ACTUAL PROBLEM FOR THE BORDER PATROL OR IN ANY WAY
 INTERFERRED WITH HIS EFFECTIVENESS AS AN AGENT," THE ARBITRATOR
 DETERMINED THAT THE IMPOSITION OF DISCIPLINE WAS NOT WARRANTED.
 ACCORDINGLY, AS HIS AWARD, THE ARBITRATOR SUSTAINED THE GRIEVANCE AND
 SET ASIDE THE SUSPENSION.
 
    IN ITS FIRST EXCEPTION THE AGENCY PRINCIPALLY CONTENDS THAT THE AWARD
 IS CONTRARY TO 5 U.S.C. SEC. 7503(A) WHICH PROVIDES THAT "AN EMPLOYEE
 MAY BE SUSPENDED FOR 14 DAYS OR LESS FOR SUCH CAUSE AS WILL PROMOTE THE
 EFFICIENCY OF THE SERVICE." IN SUPPORT THE AGENCY FIRST ACKNOWLEDGES
 THAT WITH RESPECT TO OFF-DUTY MISCONDUCT A NEXUS MUST BE SHOWN BETWEEN
 THE MISCONDUCT AND THE EFFICIENCY OF THE SERVICE.  HOWEVER, THE AGENCY
 MAINTAINS THAT THE NEXUS TEST USED BY THE ARBITRATOR WAS TOO STRINGENT
 IN ITS BURDEN ON THE ACTIVITY AND THAT CONSEQUENTLY THE AWARD IS
 CONTRARY TO SECTION 7503(A).
 
    HOWEVER, NEITHER THE AGENCY'S ASSERTIONS CONCERNING THE PRECISE
 ARTICULATION OF THE NEXUS THAT MUST BE SHOWN BY AN AGENCY BETWEEN AN
 EMPLOYEE'S OFF-DUTY MISCONDUCT AND THE EFFICIENCY OF THE SERVICE NOR THE
 AGENCY'S CITATIONS TO COURT CASES IN WHICH DETERMINATIONS THAT DISPUTED
 DISCIPLINE PROMOTED THE EFFICIENCY OF THE SERVICE WERE NARROWLY REVIEWED
 PROVIDE A BASIS FOR FINDING THE ARBITRATOR'S AWARD CONTRARY TO SECTION
 7503(A).  THE AGENCY HAS FAILED TO ESTABLISH THAT UNDER SECTION 7503(A)
 THE ARBITRATOR WAS COMPELLED BY THE CIRCUMSTANCES OF THIS CASE TO DECIDE
 AS A MATTER OF LAW THAT THE GRIEVANT'S SUSPENSION PROMOTED THE
 EFFICIENCY OF THE SERVICE AND THAT THEREFORE HIS DETERMINATION TO THE
 CONTRARY WAS DEFICIENT.  ACCORDINGLY, IT HAS NOT BEEN SHOWN THAT THE
 ARBITRATOR'S EVALUATION OF THE EVIDENCE TO FIND THAT THE ACTIVITY HAD
 NOT DEMONSTRATED THAT THE GRIEVANT'S OFF-DUTY MISCONDUCT WARRANTED THE
 DISCIPLINE IMPOSED IS IN ANY MANNER CONTRARY TO LAW.  /1/
 
    IN ITS OTHER THREE EXCEPTIONS THE AGENCY CONTENDS THAT, BECAUSE THE
 ARBITRATOR ONLY EXPRESSLY CONSIDERED THE FIRST CHARGE AGAINST THE
 GRIEVANT WHEN HIS SUSPENSION WAS BASED ON TWO ADDITIONAL CHARGES, THE
 ARBITRATOR EXCEEDED HIS AUTHORITY BY NOT DECIDING ALL THE ISSUES
 SUBMITTED AND THE AWARD DOES NOT DRAW ITS ESSENCE FROM THE COLLECTIVE
 BARGAINING AGREEMENT AND IS INCOMPLETE.
 
    HOWEVER, NONE OF THESE EXCEPTIONS PROVIDES A BASIS FOR FINDING THE
 AWARD DEFICIENT.  THERE IS NO REQUIREMENT IN LAW OR REGULATION WHICH
 WOULD REQUIRE AN ARBITRATOR TO EXPRESSLY ADDRESS THE SECONDARY CHARGES
 IN CASES SUCH AS THIS AND, WITH NO SUCH REQUIREMENT APPARENT UNDER THE
 PARTIES' AGREEMENT, IT IS CLEAR THAT THE ARBITRATOR WAS NOT OBLIGATED TO
 SPECIFICALLY DISCUSS THESE CHARGES.  THE FACT THAT HIS OPINION
 ACCOMPANYING THE AWARD DID NOT MENTION SUCH CHARGES DOES NOT ESTABLISH
 THAT HE DID NOT RULE ON THEM.  AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2327 AND DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
 SOCIAL SECURITY ADMINISTRATION, 5 FLRA NO. 23 (1981) AND PRIVATE SECTOR
 CASES CITED THEREIN.  BECAUSE THE AGENCY'S ASSERTION THAT THE ARBITRATOR
 DID NOT CONSIDER THE SECONDARY CHARGES IS BASED SOLELY ON THE ARBITRATOR
 NOT EXPRESSLY ADDRESSING SUCH CHARGES IN HIS OPINION ACCOMPANYING THE
 AWARD, THE AGENCY CONSEQUENTLY FAILS TO ESTABLISH THAT THE ARBITRATOR
 EXCEEDED HIS AUTHORITY OR THAT THE AWARD DOES NOT DRAW ITS ESSENCE FROM
 THE AGREEMENT OR IS INCOMPLETE.  SEE ID.
 
    FOR THE FOREGOING REASONS THE AGENCY'S EXCEPTIONS ARE DENIED.
 
    ISSUED, WASHINGTON, D.C., MARCH 24, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ IN ITS FIRST EXCEPTION THE AGENCY ALSO ALLEGES THAT THE AWARD IS
 CONTRARY TO ITS RIGHT UNDER SECTION 7106(A)(2)(A) OF THE STATUTE "TO
 SUSPEND . . . OR TAKE OTHER DISCIPLINARY ACTION AGAINST . . .
 EMPLOYEES." HOWEVER, ITS ARGUMENTS IN SUPPORT OF THIS ASSERTION ARE ALL
 RELATED TO ITS CONTENTIONS REGARDING 5 U.S.C, SEC. 7503(A), DISCUSSED
 ABOVE, AND THE AGENCY HAS NOT OTHERWISE ESTABLISHED THAT THE
 ARBITRATOR'S AWARD RESOLVING THE ISSUE OF WHETHER THERE WAS JUST CAUSE
 FOR THE SUSPENSION IS CONTRARY TO SECTION 7106(A)(2)(A).