42:0650(41)AR - - Justice, INS, NY District and AFGE, INS Council - - 1991 FLRAdec AR - - v42 p650



[ v42 p650 ]
42:0650(41)AR
The decision of the Authority follows:


42 FLRA No. 41

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

NEW YORK DISTRICT OFFICE

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

IMMIGRATION AND NATURALIZATION SERVICE COUNCIL

LOCAL 1917

(Union)

0-AR-1912

DECISION

September 30, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Eric J. Schmertz filed by the Agency pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.

The Agency suspended the grievant for 10 days without pay for allegedly: (1) misstating a fact to a supervisor and co-worker; (2) refusing to answer a supervisor's question; and (3) using insulting, abusive and obscene language when talking to a supervisor. The Arbitrator found that the Agency failed to show by clear and convincing evidence that the suspension was made for just and sufficient cause. The Arbitrator sustained the grievance, set aside the suspension, and ordered that the grievant be given backpay. For the following reasons, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

The grievant is a Deportation Officer who was reassigned to perform Bond Officer duties for 1 day. While completing a worksheet on a bond for an alien being held in the Chula Vista detention center, the grievant had all of the information needed to entitle the alien to be released on bond, except the alien's date of birth. When the grievant was unable to obtain that information, he requested the secretary who was preparing the alien's bond worksheet to put her own date of birth on the form. The secretary refused.

The supervisor overheard the grievant request that the secretary use her own date of birth on the form. When the supervisor asked the grievant about that action, a dispute developed between the supervisor and the grievant. As a result, the grievant was charged with: (1) dereliction of duty; (2) misstatement of fact to a supervisor; (3) refusal to answer a supervisor's question; and (4) use of insulting, abusive and obscene language to a supervisor. The Agency investigated the incident and dismissed the charge of dereliction of duty. The Agency proposed that the grievant be suspended for 10 days without pay on the remaining charges.

The grievant grieved the suspension. The matter was not resolved and the grievance was submitted to arbitration. The parties stipulated the following issue before the Arbitrator: "Was the 10-day suspension of [the grievant] taken for just and sufficient cause in accordance with Article 31-H(1) of the negotiated agreement, and if not, what shall the remedy be?"(1) Award at 1.

The Arbitrator stated that the Agency "has the burden of establishing by clear and convincing evidence that there was just and sufficient cause for disciplining [the grievant]." Id. at 11. With respect to the charge that the grievant made a misstatement of fact to the supervisor and a co-worker, the Arbitrator found that the Agency "failed to establish by clear and convincing evidence that the conduct charged provides just and sufficient cause for disciplining [the grievant]." Id. at 13. The Arbitrator found "significant evidence of record that [the grievant], after having identified the aliens who were entitled to be released, acted in accordance with common office practice to accomplish their release expeditiously." Id.

With regard to the alleged misconduct of the grievant set forth in the third and fourth charges, the Arbitrator found that the parties presented completely different versions of the incident. As there was no corroboration of either side's version, the Arbitrator found that he was "constrained" to find that the Agency had "not sustained its burden of establishing by clear and convincing evidence that the words were spoken and that there was just and sufficient cause for disciplining the [grievant] on the basis of these last two charges." Id. at 13-14.

The Arbitrator set aside the grievant's 10-day suspension and ordered that the grievant be made whole as to any loss of money or rights and privileges that he suffered by virtue of the suspension.

III. Positions of the Parties

A. The Agency

The Agency contends that the award is contrary to 5 U.S.C. § 5596(b) (the Back Pay Act) and 5 U.S.C. § 7503(a) because the Arbitrator imposed an improper standard of proof.(2) The Agency specifically excepts to the Arbitrator's statement that "[t]he Employer has the burden of establishing by clear and convincing evidence that there was just and sufficient cause for disciplining [the grievant]." Exceptions at 2 (emphasis in original).

The Agency asserts that in providing for arbitral review of grievances contesting suspensions of 14 days or less, Congress "intended the evidentiary standard to be applied to be the 'arbitrary and capricious,' or at most, the 'preponderance of the evidence standard, not the more difficult 'clear and convincing evidence' standard which the Arbitrator applied here." Id. at 3. The Agency argues that the Arbitrator departed from the private sector practice by applying the "clear and convincing evidence" standard and that if the Arbitrator had applied the correct standard, the "evidence presented by the [Agency] was sufficient to support the suspension." Id. at 6-7.

The Agency contends that under Department of the Treasury, Internal Revenue Service v. FLRA, 110 S. Ct. 1623 (1990) (Internal Revenue Service), an arbitrator can reverse a disciplinary action imposed by an agency only if the arbitrator finds that the action was contrary to law. The Agency asserts that the only laws that limit management's right to discipline employees are the Back Pay Act, 5 U.S.C. § 5596(b), and 5 U.S.C. § 7503, pertaining to suspensions for 14 days or less. The Agency maintains that the only substantive limitation on management's right to take disciplinary action is that such action be taken "for such cause as will promote the efficiency of the service" as provided in 5 U.S.C. § 7503(a).

The Agency argues that Congress intended that a lesser standard of proof than "clear and convincing evidence" be used in adjudicating grievances concerning disciplinary actions taken under 5 U.S.C. § 7503. Exceptions at 9. The Agency contends that "the implied statutory standard of proof which an agency must meet in order to sustain a minor disciplinary action" is that the action not be "arbitrary and capricious." Id. The Agency asserts that even if Congress did not intend the "arbitrary and capricious" standard to be applied in such cases, the highest standard of proof that Congress could have intended in those cases is the "preponderance of the evidence" standard prescribed for the Merit Systems Protection Board (MSPB) in 5 U.S.C. § 7701(c)(1)(B) for deciding adverse action cases arising under 5 U.S.C. § 7512-13. Id. at 11. The Agency argues that Congress "could not logically be found to have intended to give employees any greater protection with respect to contesting suspensions of 14 days or less . . . than with respect to contesting suspensions of 15 days or more or removals[.]" Id. at 15. The Agency contends that the usual standard of proof applied in private sector cases is the "preponderance of the evidence" standard and asserts that allowing agencies and unions to negotiate any standards they may choose would be unworkable and lead to inconsistencies with the standards established by law for union animus and equal employment opportunity cases.

The Agency also asserts that the award interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. The Agency argues that requiring management to meet a higher standard of proof than "arbitrary and capricious" or "preponderance of the evidence" would result in disciplinary actions being set aside and would "serve to interfere with the right to 'suspend' employees reserved by section 7106(a)(2)(A) of the Statute." Id. at 22. The Agency asserts that a negotiated agreement provision to use the "clear and convincing evidence" standard would not constitute either a procedure under section 7106(b)(2) of the Statute or an appropriate arrangement under section 7106(b)(3) of the Statute. Id.

B. The Union

The Union contends that the Arbitrator's award is not contrary to any law, rule or regulation. The Union asserts that the Agency's reliance on sections 7503(a), 5596(b) and 7106(a)(2)(A) of Title 5 of the U.S. Code is misplaced because those provisions "contain no language on burden of proof." Opposition, n.1.

The Union maintains that an arbitrator, when resolving a contract violation, "is not required to apply [F]ederal law pertaining to the proper order and nature of proof in actions in [F]ederal courts[.]" Id. at 1-2. The Union notes that the Arbitrator properly applied the standard of "just and sufficient cause" provided in the parties' agreement and notes that the Arbitrator also stated that the Agency failed to show by "clear and convincing evidence" that it had "just and sufficient cause" to suspend the grievant. Id. at 2. The Union denies that the Arbitrator's use of the term "clear and convincing evidence" constitutes a violation of law and maintains that unless a specific standard of proof is expressly provided for in an agreement, an "arbitrator may establish whatever standard of proof the arbitrator considers appropriate, and the award is not reviewable on that basis." Id.

The Union also claims that the Arbitrator's finding that there was no clear and convincing evidence simply means that the Agency "had not convinced him . . . that the [Agency] had proffered enough evidence to demonstrate that it had just and sufficient cause to discipline the grievant." Id. at 3.

The Union asserts that the standards set forth in section 7701, pertaining to the appellate review procedures of the MSPB, do not apply to the arbitration of suspensions of 14 days or less, even though under section 7121(e) of the Statute, an arbitrator is governed by the standards provided in section 7701(c). The Union claims that, as it pertains to disciplinary actions, section 7121(e)(2) "only applies to the more serious adverse actions enumerated in section 7512 and, therefore, neither that section nor the standards set forth in [s]ection 7701(c) apply to suspensions of 14 days or less as in this case." Id. Therefore, the Union argues, the award is not contrary to law.

Further, the Union states that the Agency and the Union agreed in Article 31 H(1) of their agreement to use the just and sufficient cause standard to resolve disciplinary matters. The Union notes that the parties "agreed to a contract that did not further delineate or define the 'burden of proof' standards for Section 7503 matters such as the instant case." Id. at 7.

IV. Analysis and Conclusions

We conclude that the Agency has failed to establish that the Arbitrator's award is deficient because it is contrary to law. Therefore, we will deny the Agency's exceptions.

A. The Arbitrator's Award Is Not Contrary to 5 U.S.C. § 5596(b) or 5 U.S.C. § 7503(a)

Initially, we reject the Agency's contention that 5 U.S.C. § 5596(b) and 5 U.S.C. § 7503(a) establish a specific standard of proof that must be met in order to support disciplinary actions of 14 days or less. Neither of those provisions of law contains any language concerning standard of proof or burden of proof and neither provision establishes any standards that an arbitrator must apply when considering grievances over disciplinary actions such as suspensions of 14 days or less. The substantive standards relating to burden of proof and degree of proof prescribed by 5 U.S.C. § 7701(c)(1) for appeals to the MSPB are further defined in 5 C.F.R. § 1201.56. In addition to describing the proper allocation of the burden of proof, that regulation describes "substantial evidence," "preponderance of the evidence," and "harmful error," as those terms relate to appeals before the MSPB. 5 C.F.R. § 1201.56(c). The Authority has repeatedly held that arbitrators are not bound by those substantive standards applied by the MSPB when resolving grievances over actions not covered by 5 U.S.C. §§ 4303 and 7512. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, 41 FLRA 504, 511 (1991); American Federation of Government Employees, Local 1592 and U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 40 FLRA 958, 963 (1991); U.S. Department of Justice, Immigration and Naturalization Service, Jacksonville, Florida and American Federation of Government Employees, National Border Patrol Council Local 3725, 36 FLRA 928, 932 (1990) (INS, Jacksonville).

The award in this case concerns the 10-day suspension of the grievant. A suspension for 10 days is not a matter covered by 5 U.S.C. §§ 4303 or 7512. Therefore, the standards prescribed for appeals of those matters to the MSPB do not apply in this case and the Agency's exceptions provide no basis for finding the award to be deficient as contrary to law. Consequently, in the absence of any specified standard of proof, the Arbitrator was free to apply the standard of proof that he deemed appropriate to determine whether the suspension of the grievant was for such cause as will promote the efficiency of the service. See INS, Jacksonville, 36 FLRA at 932.

We find that the Agency's arguments based on the decision of the Supreme Court in Internal Revenue Service are misplaced. That decision concerns the negotiability of a union proposal that would require the negotiated grievance procedure to be designated as the internal appeals procedure for complaints relating to contracting out of work. The Agency has not pointed to any language in that decision that addresses the issue in the present case and, particularly, no language that prescribes the standard of proof that arbitrators should apply when resolving grievances arising from disciplinary action taken by an agency against an employee under 5 U.S.C. § 7503. We note that the Supreme Court has held that when arbitrators are called upon to address grievances arising under the provisions of 5 U.S.C. §§ 4303 or 7512, those arbitrators are required to apply the substantive standards prescribed for the MSPB in 5 U.S.C. § 7701(c), which describes the appropriate standard of proof and the harmful error standard. See Cornelius v. Nutt, 472 U.S. 648, 660-61 (1985). In Cornelius v. Nutt, the Supreme Court made no finding of a similar requirement for arbitrators deciding matters under 5 U.S.C. § 7503. Consequently, we find that the Agency has failed to demonstrate that the Arbitrator was required to apply the substantive standards found in 5 U.S.C. § 7701(c) to the grievance over a 10-day suspension.

We conclude that the Agency has failed to show that the Arbitrator's award is deficient on the basis that the Arbitrator applied an improper standard of proof. The Arbitrator addressed the issue presented and found that the Agency failed to show that the grievant's suspension was made for just and sufficient cause in accordance with the relevant provision of the parties' collective bargaining agreement. In the absence of a required standard of proof, the Agency's argument that the grievant's suspension would have been sustained if the Arbitrator had applied a different standard of proof constitutes nothing more than disagreement with the Arbitrator's evaluation of the evidence and testimony at the hearing, and provides no basis for finding an award deficient. See U.S. Department of the Treasury, Internal Revenue Service, Brookhaven Service Center and National Treasury Employees Union, Chapter 99, 37 FLRA 1176, 1187-88 (1990); INS, Jacksonville, 36 FLRA at 934.

B. The Arbitrator's Award Is Not Contrary to Section 7106(a)(2)(A) of the Statute

In asserting that the award interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute, the Agency stated that the Union might argue that the standard of clear and convincing evidence applied by the Arbitrator "was (contrary to fact) somehow found to be implicit in Article 31-H of the parties' master agreement" and that the standard of clear and convincing evidence was "either a 'procedure' or an 'appropriate arrangement' within the meaning of section 7106(b)(2) or (3) of the Statute." Exceptions at 22. The Union did not make this argument, however. Instead, the Union argued that although the "burden of proof standard at arbitration is procedural" and that the "contractual 'just and sufficient cause' standard can be properly viewed as a [s]ection 7106(b)(3) arrangement," the parties' agreement is silent as to the standard of proof that was applicable in disciplinary cases under 5 U.S.C. § 7503. Opposition at 6-7.

We conclude, based on long-standing Authori