47:0776(72)AR - - Air Force, OK City Air Logistics Command, Tinker AFB, OK and AFGE Local 916 - - 1993 FLRAdec AR - - v47 p776



[ v47 p776 ]
47:0776(72)AR
The decision of the Authority follows:


47 FLRA No. 72

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE AIR FORCE

OKLAHOMA CITY AIR LOGISTICS COMMAND

TINKER AIR FORCE BASE, OKLAHOMA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 916

(Union)

0-AR-2391

_____

DECISION

May 28, 1993

_____

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 Don J. Harr filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator denied the grievance over the 10-day suspension of the grievant. We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

In February 1991, the grievant, an aircraft mechanic parts worker, received a proposed notice of removal. The notice charged the grievant with "Returning to Duty Under the Influence of Marijuana" and cited cause of action 11c from the table of penalties set forth in Air Force Regulation (AFR) 40-750.(1) Award at 2. The charge was based, in part, on the allegations of another employee who was acting as an undercover agent of the Agency's office of special investigations. The agent asserted that he had accompanied the grievant to lunch at a bar off the premises of the Agency on three occasions in June 1990. The agent alleged that, on each occasion, he had witnessed the grievant smoking marijuana and that, after each occasion, he and the grievant returned to work.

In response to the proposed notice of removal, the grievant denied the allegations and submitted statements of coworkers stating that they had never noticed that the grievant was impaired for duty. The deciding official decided to suspend the grievant for 10 days in lieu of removal. The grievant filed a grievance disputing the suspension. The grievance was not resolved and was submitted to arbitration on the issue, as stated by the Arbitrator, of whether the suspension was for just cause.

At arbitration, the agent testified that on the three occasions, he had witnessed the grievant smoke "what appeared to be a marijuana cigarette[.]" Award at 3. The agent conceded that he had no way of knowing whether it actually was marijuana, but he testified that "it had the appearance and smell of it." Id. The grievant did not testify at arbitration.

The Arbitrator stated that "[t]he decision in this matter must be based on the substantive standards which would be applied by the Merit Systems Protection Board [MSPB], if the matter had been appealed to it." Id. at 4. As the award, the Arbitrator denied the grievance.

The Arbitrator stated that the grievant attempted to counter the testimony of the agent by focusing on the agent's testimony that the substance smoked by the grievant "appear[ed]" to be marijuana. Id. However, the Arbitrator noted the additional testimony of the agent about the extent of his training and how he had learned to recognize the appearance and smell of marijuana and the effects of marijuana on a user. Thus, in the judgment of the Arbitrator, "[n]othing was presented to refute [the agent's] testimony." Id. The Arbitrator also found that the facts of this case were similar to those in Hebron v. Department of Commerce, 36 MSPR 554, 557 (1988), with respect to the finding of the MSPB that, in returning to work after smoking marijuana, the employees "necessarily carried the lingering effects of the drug[.]" In sum, the Arbitrator ruled that the discipline was imposed for just cause and that a 10-day suspension was an appropriate penalty.

III. First Exception

A. Positions of the Parties

The Union contends that the award is deficient because the Arbitrator exceeded his authority by sustaining discipline beyond the range of penalties set forth in the table of penalties of AFR 40-750. The Union acknowledges that the grievant was disciplined for "returning to duty under the influence of marijuana." Exceptions at 3 (quoting the charge). However, the Union asserts that, in its brief to the Arbitrator, the Agency noted that the version of the table of penalties dated July 23, 1982, listed the charge against the grievant as "Cause [of] Action . . . 11b." Id. The Union notes that this table of penalties listed a range of penalties from reprimand to a 5-day suspension for a first offense under this cause of action. The Union claims that, although the table is a guideline, the Arbitrator failed to justify sustaining a penalty that "exceeded the allowable limit of punishment" and failed to apply the same substantive standards in reviewing the penalty that would have been applied by the MSPB in a case under 5 U.S.C. § 7512.

The Agency argues that the Union's exception is based on an obsolete version of the table of penalties of AFR 40-750. The Agency agrees that the charge against the grievant was very similar to that listed as 11b in the 1982 table of penalties and that it did reference the 1982 table in its brief to the Arbitrator. However, the Agency asserts that the 1989 table replaced the 1982 table and that the 1989 table applied to this case. Moreover, the Agency asserts that it is not disputed by the Union that the cause of action cited in the notice of proposed removal of the grievant was cause of action 11c, and not cause of action 11b. The Agency has submitted a copy of the 1989 table and notes that cause of action 11c, entitled "Use of illegal drugs[,]" provides a range of penalties from reprimand to removal for the first offense of using illegal drugs. Thus, the Agency claims that the Union fails to provide a basis for finding that the Arbitrator exceeded his authority.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the award is deficient. As explained and supported by the Agency, the 1982 table of penalties of AFR 40-750 was superseded by the 1989 version, which version applies to this case. There is no longer a cause of action using the language of the charge against the grievant in the 1989 version of the table of penalties of AFR 40-750. Furthermore, as acknowledged by the Union, the notice of proposed removal of the grievant cited cause of action 11c. Because the table provides a range of penalties from reprimand to removal for the first offense under cause of action 11c (using illegal drugs), a 10-day suspension is within the range of penalties provided. Consequently, we find that the Union provides no basis for finding that the award is deficient because the Arbitrator "exceeded the allowable limit of punishment[]" in sustaining the 10-day suspension. Exception at 3.

The Union's claim that the Arbitrator failed to apply the same substantive standards in reviewing the penalty as would have been applied by the MSPB in a case under 5 U.S.C. § 7512 also fails to provide a basis for finding the award deficient. The Authority has repeatedly ruled that the statutorily prescribed standards of 5 U.S.C. § 7701(c) that must be applied by the MSPB and arbitrators with respect to the more serious adverse actions covered by section 7512 do not apply to suspensions of 14 days or less. See U.S. Department of Justice, Immigration and Naturalization Service, Honolulu District Office, Honolulu, Hawaii, 41 FLRA 207, 211 (1991) (INS). However, we note that the Arbitrator incorrectly stated that he was required to apply the same substantive standards that would have been applied by the MSPB in a case under section 7512. In INS, although we found that, in cases of suspensions for 14 days or less, arbitrators are not required to apply the prescribed standards of section 7701, such as the harmful-error rule, we held that nothing in court decisions or Authority decisions precludes arbitrators from applying such standards. In view of that decision, we find no basis for finding deficient the Arbitrator's determination to apply the substantive standards that are applied by the MSPB when he decided whether the 10-day suspension of the grievant was for just cause, even though he did so under the mistaken belief that he was required to do so. Moreover, to the extent the Union is challenging the content of the standards that the Arbitrator chose to apply, we find that the Union is merely disagreeing with the Arbitrator's reasoning and conclusions in arriving at his determination that the suspension was for just cause. Such disagreement provides no basis for finding the award deficient. See, for example, U.S. Department of Justice, Federal Bureau of Prisons, Terre Haute, Indiana and American Federation of Government Employees, Local 720, 41 FLRA 237, 242 (1991). Accordingly, we will deny the Union's exception.

IV. Second Exception

A. Positions of the Parties

The Union contends that the award is deficient because the Arbitrator "ignored the refutation which rebutted the testimony of Agency witnesses and changed the burden of proof which is placed upon the Agency . . . ." Exceptions at 3. The Union notes that the Arbitrator ruled that "[n]othing was presented to refute [the agent's] testimony." Id. at 4 (quoting Award at 4). The Union argues that, to the contrary, the grievant's response to the proposed notice of removal refuted the testimony and maintains that the only possible basis for the Arbitrator's ruling is that the Arbitrator drew an adverse inference from the grievant's failure to testify. The Union claims that, by basing the award on such an adverse inference, the award is contrary to decisions of the MSPB and AFR 40-750, which preclude a disciplinary action from being sustained solely on the basis of a grievant's failure to testify. In addition, the Union argues that the award is deficient by relying on the agent's testimony because the Arbitrator never discussed the credibility of the agent.

The Agency disputes that the Arbitrator placed the burden of proof on the grievant and that the Arbitrator drew an adverse inference from the grievant's failure to testify. The Agency argues that the Arbitrator found the agent credible and that the grievant placed nothing into evidence to refute that testimony.

B. Analysis and Conclusions

We conclude that the Union provides no basis for finding that the award is deficient. We find that the Union fails to establish that the Arbitrator placed the burden of proof on the grievant or that the Arbitrator drew an adverse inference from the grievant's failure to testify. In our view, the Arbitrator determined that the agent's testimony was more credible than the grievant's denial of the charge against him and that, therefore, the Agency had sustained its burden of proof.

The Union's claim that it had refuted the agent's testimony constitutes nothing more than disagreement with the Arbitrator's evaluation of the evidence and testimony and of the credibility of witnesses and constitutes an attempt to relitigate the merits of this matter before the Authority. Such a claim provides no basis for finding an award deficient under the Statute. See, for example, U.S. Department of the Navy, Naval Surface Warfare Center, Dahlgren, Virginia and American Federation of Government Employees, Local 2096, 44 FLRA 1118, 1127 (1992). Furthermore, the Arbitrator's failure to specifically discuss the agent's credibility in no manner precluded the Arbitrator from relying on his testimony in denying the grievance. We have repeatedly rejected contentions that an arbitrator was obligated to set forth findings and a rationale more specific than that provided by the Arbitrator in this case. See U.S. Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 42 FLRA 931, 934 (1991) (citing Wissman v. SSA, 848 F.2d 176 (Fed. Cir. 1988), in which the court indicated that there is no general statutory obligation that an arbitrator set forth specific findings). Moreover, we reiterate that it is readily apparent to us that the Arbitrator found that the agent's testimony was more credible than the grievant's denial of the charge.

V. Third Exception

A. Positions of the Parties

The Union contends that the award is deficient because the Arbitrator exceeded his authority "by allowing the Agency to change the nature of the charge against the [g]rievant[]" and because the suspension of the grievant did not promote the efficiency of the service, as required by 5 U.S.C. § 7513.(2) Exceptions at 4.

The Union claims that the Arbitrator ignored the charge as listed in AFR 40-750. The Union maintains that the notice of proposed removal cited cause of action 11c from the table of penalties set forth in AFR 40-750 and quotes the cause of action, as follows:

Being on duty so impaired by marijuana, a narcotic or dangerous drug as to be unable to perform duties properly or to be a hazard to self or others.

Id. The Union asserts that there was no evidence of any impairment of the grievant, no evidence of his inability to perform duties properly, and no evidence that he was a hazard to himself or others. The Union argues that there was never a confirmation that the substance smoked by the grievant was, in fact, marijuana. The Union further argues that Hebron, cited by the Arbitrator, does not support the discipline or the Arbitrator's denial of the grievance. With respect to Hebron, the Union asserts that, although the MSPB mentioned the necessarily "lingering effects" of smoking marijuana, the MSPB based its conclusion of impairment on independent testimony of the employee. The Union claims that, in this case, there was no evidence that the grievant "return[ed] to duty under the influence of marijuana," as charged. Id. at 6 (quoting the charge).

With respect to the efficiency of the service, the Union argues that the award is contrary to the requirement of section 7503 that there be a nexus between suspending an employee for the alleged misconduct and the promotion of the efficiency of the service. The Union alleges that any misconduct of the grievant was off-duty during his lunch period and that the Agency never presented any evidence to show a nexus between suspending the grievant for the alleged off-duty misconduct and the promotion of the efficiency of the service.

The Agency claims that the Union's quotation of cause of action 11c in the table of penalties of AFR 40-750 is from the superseded 1982 table. The Agency again references the table dated 1989, which lists use of illegal drugs as cause of action 11c. The Agency asserts that the grievant was fully apprised of the nature of the charge against him. The Agency also disputes the Union's claim that the suspension of the grievant did not promote the efficiency of the service and that the Agency failed to present any evidence of nexus. The Agency argues that it addressed this issue in the testimony of the deciding official, during which the Arbitrator stated that "I'll take notice as to why [the Agency] can't tolerate drugs on the work [site]." Opposition at 5 (quoting Hearing Transcript at 95). The Agency asserts that it was permissible for the Arbitrator to take notice of the nexus with respect to alleged use of illegal drugs and that no basis is provided for finding the award deficient.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the award is deficient.

We reject the Union's claim that the Arbitrator allowed the Agency to change the nature of the charge against the grievant. As noted by the Agency, the Union erroneously relies on the superseded 1982 table of penalties in quoting cause of action 11c. The grievant was suspended for "Returning to Duty Under the Influence of Marijuana" and the notice of disciplinary action cited cause of action 11c from the table of penalties of AFR 40-750. Award at 2. As established by the Agency, cause of action 11c in the applicable version of the table of penalties is identified as use of illegal drugs. We find that the Arbitrator sustained the suspension of the grievant based on the misconduct with which the grievant was charged. In our view, the Arbitrator found that the Agency had established that the grievant had used illegal drugs and that he had returned to duty under the influence of marijuana. The charge against the grievant did not involve any elements of his impairment, his inability to perform his duties, or his being a hazard to himself or others, as alleged by the Union.

Furthermore, to the extent that the Union is arguing that the suspension could not be sustained because there was no confirmation that the substance that the grievant smoked was marijuana and that he was under the influence when he returned to duty, we find that these arguments fail to establish that the award is deficient. These arguments constitute nothing more than disagreement with the Arbitrator's evaluation of the evidence and testimony and with the Arbitrator's reasoning and conclusions and constitute an attempt to relitigate this matter before the Authority. As we stated with respect to the Union's other exceptions, these arguments fail to provide a basis on which to find an award