National Association of Government Employees (Union) and United States, Department of the Navy, Navy Region Southwest, Regional Force Protection, San Diego, California (Agency)

[ v60 p35 ]

60 FLRA No. 11

NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
(Union)

and

UNITED STATES
DEPARTMENT OF THE NAVY
NAVY REGION SOUTHWEST
REGIONAL FORCE PROTECTION
SAN DIEGO, CALIFORNIA
(Agency)

0-AR-3791

_____

DECISION

June 22, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Robert D. Steinberg filed by the Union under §7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied a grievance alleging that the grievant was suspended without just cause.

      For the following reasons, we deny the Union's exceptions.

II.     Background

      The grievant has been employed as a police officer with the Agency since January 2001. Award at 2. The night of February 2, 2003, the grievant arrested a woman (subject) who was speeding on the Navy base. Award at 2. The subject was removed from the vehicle because she was determined to be under the influence of alcohol. Id. The subject requested her jacket and while the jacket was "being handed to her, a knife with a 4 [inch] switchblade was discovered." Id. The grievant gave the subject three "driving/drinking" citations and drove her to a detoxification facility. Id.

      The grievant admitted that under Base Instruction 5560.5F, he could have given the subject a citation for [ v60 p36 ] the possession of a dangerous weapon, but decided not to do so. Id. The grievant, with the subject's permission, confiscated the knife, disposed of it in a "trash container" and did not prepare a written record of the confiscation or give the subject a receipt. [n1]  Id. at 2, 5. The Agency investigated the grievant's actions after a fellow police officer questioned the grievant's handling of the knife. The Agency determined that the grievant did not follow protocol and suspended him for five days. Id. at 2.

      In the course of grievance processing, the grievant's suspension was reduced to two days, but the parties were unable to resolve the grievance and the matter went to arbitration. Id. at 6. The issues submitted to the Arbitrator were, whether the grievant was suspended for just cause and if not, what is the appropriate remedy? Id. at 1.

      The Agency argued that the grievant knowingly ignored standard operating procedures (SOPs) and that he did not have the authority to modify those procedures. Id. at 3. The Agency further asserted that the grievant's claim, that he did not understand that the knife was a "proscribed weapon" that needed to be seized, and his belief that the weapon could be disposed of informally, were "incredible." Award at 3. The Agency explained that another officer present during the incident was concerned about the grievant's conduct and reported those concerns to his superiors. Id. The Agency contended that the grievant "is prone to follow his own rules rather than obeying Department rules and regulations." Id. Finally, the Agency expressed the need to handle seized property properly and stated the suspension was justified as a result of the grievant's previous conduct. [n2]  Id.

      The Union alleged that the procedures to which the Agency referred were "neither clear nor specific and are subject to differing interpretations." Id. According to the Union, officer discretion was involved in the situation and the grievant reasonably exercised his discretion. [n3]  Id. The Union also claimed that despite four other officers being involved in the incident, only the grievant was disciplined. Id. at 4. According to the Union, this constituted disparate treatment and warranted the setting aside of the suspension. Id.

      The Arbitrator determined that the grievant was in charge of the arrest and was the "decision-maker as to how to handle the knife." [n4]  Id. The Arbitrator concluded that because the grievant was in charge, it was not disparate treatment to discipline only the grievant. Id.

      The Arbitrator found that the Agency "presented credible evidence that security personnel were trained in and understood the types of property prohibited on the Base . . . and that Grievant had no authority to ignore the weapons violation and decline to issue a magistrate's citation regarding that violation." See Award at 4. The Arbitrator found that the Agency's Instruction 5560.5F classified the type of knife the grievant confiscated as a dangerous weapon and that the grievant knew of the classification as illustrated by the grievant telling the subject that he would have to formally seize the knife if she wanted it returned to her. Id.

      The Arbitrator concluded that the grievant did not have discretion to confiscate and dispose of the knife in the manner he did. Id. at 5. The Arbitrator found that the knife was not incidental to the arrest, as the grievant had claimed, but that it was evidence of a separate violation. Id. The Arbitrator dismissed the grievant's claim that a citation for possession of the knife would not have resulted in "harsher treatment" for the subject and stated, "[a] police officer's obligation is to seize and cite, not adjudicate." See id.

      The Arbitrator also dismissed the Union's argument that an email message informed the officers that property seized from a vehicle should be disposed of and would not be held in custody. Id. The Arbitrator explained that the email was never presented as evidence and that other documentation stated that property seized from a vehicle would no longer be held in evidence lockers but did not state that the property should not be seized. Id.

      The Arbitrator determined that officers have less discretion when dealing with weapons violations on the base because those violations are "more serious modes of misbehavior[.]" Id. As such, the Arbitrator concluded that the knife should have been seized and the subject cited for the violation. Id. According to the [ v60 p37 ] Arbitrator, any decision to proceed otherwise is a "supervisory or a managerial call." Id.

      The Arbitrator found that the grievant's actions were contrary to Agency SOPs and regulations and that the grievant ignored them. Based on his findings, the Arbitrator determined that the Agency had just cause to suspend the grievant and denied the grievance. Id. at 6.

III.     Positions of the Parties

A.     Union's Exceptions

1.     The award is based on nonfact.

      The Union argues that the Arbitrator erred when he stated that the grievant was in charge of the arrest and that the other officers present were not actively involved in the arrest. Exceptions at 2. The Union contends that according to the Incident Report, a different officer made the arrest, prepared the Incident Report, issued the citations and the order barring the subject from the base and was "named as the arresting officer on the operational checklist." Id. The Union asserts that the Arbitrator's determination is a "significant non-fact" and that the Arbitrator denied the grievance because he incorrectly determined the grievant was the officer in charge. Id.

2.     The award fails to conform with due process and just cause.

      The Union argues that the grievant never received notice of which SOPs or regulations he was charged with violating. Exceptions at 2. According to the Union, the grievant was entitled to notice of the basis for any adverse personnel action under due process. Id. The Union alleges that the Agency's "generalized statements without reference to any SOP or regulation" did not satisfy the requirements of due process. Id. (citing Skelly v. State Personnel Board, 15 Cal 3d, 194 (Cal. 1975)).

      The Union explains that arbitral standards also require that an employee receive notice of the rule or regulation, the violation of which resulted in the adverse personnel action. Id. The Union argues that none of the Agency's correspondence referred to the regulations or SOPs the Agency relied on for the suspension and that none of the regulations or SOPs cited by the Agency indicated that a violation may result in suspension. Id. As a result, the Union claims that the grievant did not have any notice that his actions could result in a suspension. Id.

      The Union argues that just cause requires that a grievant must be notified of any rules and the possible or probable consequences of a violation of those rules. Id. at 3 (citations omitted). The Union asserts that because the Agency's SOPs and regulations were ambiguous, the grievant was not clear about the appropriate action to take in this situation. Id.

3.     The award conflicts with Agency rules and regulations.

      The Union argues that the Agency's SOPs and regulations pertaining to the possession of the type of knife involved in this case do not set forth the action to be taken if a knife is found. [n5]  Exceptions at 3-4. The Union explains that the regulation cited by the Agency does not require an officer to take any specific action upon discovering a knife; the regulation simply states that such a knife shall not be in the possession of a civilian on base. Id. at 4. The Union argues that if there was specific action to be taken upon discovering a knife, the rule would have stated it as it does for firearms. [n6]  Id.

      The Union claims that the Agency's SOPs and regulations are not clear, as evidenced by the need for an officer present during the incident to call a superior to obtain clarification of the requirements as to whether to seize the knife. Id. In addition, the Union argues that the Agency has a rule that states, where a "CID is not assuming the case or a magistrate citation is not written[,]" seized property should not be placed in a temporary evidence locker but should be destroyed, not taken at all or returned to the owner. [n7]  Id.

      Finally, the Union argues that there is an Agency rule that gives an officer discretion in determining what crimes have been committed and what evidence is relevant. Id. at 5. The Union claims that the grievant exercised that discretion appropriately. Id. Therefore, the Union asserts that there was no just cause for the discipline. Id.

B.     Agency's Opposition

1.     The award is not based on nonfact.

      The Agency contends that, if the Authority has the ability to review the Union's exception, the Union's assertion that the award is deficient because it is based on a non-fact is in error because it "lacks the requisite [ v60 p38 ] citation of the applicable criterion allowing for its review and/or pertinent case law deriving from either Federal or private sector labor-management relations supporting its assertions." Opposition at 2.

      Examining the merits of the Union's argument, the Agency claims that the Union's account of the facts is faulty because it omits the fact that the officer who the Union argues was in charge was a trainee under the grievant's supervision. Id.

      The Agency also asserts that the Union's exception is merely a disagreement with the Arbitrator's findings and that an arbitration award cannot be reviewed on the basis of "evidence in existence at the time of the arbitration hearing but not presented to the arbitrator . . . ." Id. at 3 (citing Veterans Affairs Regional Office, 5 FLRA 463 (1981)).

2.     The award does not fail to conform with due process or just cause.

      The Agency contends that the Union raised its argument related to the notice the grievant received for the first time in its exceptions and that an argument cannot be raised for the first time in an exception to an arbitrator's award. Opposition at 3.

      Citing the statutory and contractual procedural requirements for a suspension of 14 days or less, the Agency alleges that the record illustrates that the requirements were followed and that the grievant did not reply to the misconduct charge and never requested the information the Agency used as a basis for the charges. Id. at 4-5.

      The Agency claims that the Union and the grievant cannot now assert that the grievant did not receive due process because the Agency did not give proper notification of the regulations or SOPs that were violated, the violation of which resulted in the suspension, because the grievant admitted to the conduct. Id. at 5.

      Finally, the Agency argues that the Arbitrator made specific factual findings to support his conclusion and that the Arbitrator's findings, at the least, established constructive knowledge of the Agency's rules and regulations on the part of the grievant. Id.

3.     The award does not conflict with Agency rules and regulations.

      The Agency argues that the Union's contention that the grievant completed his responsibilities once he discovered and discarded the knife "defies logic and credulity in a physical security and/or law enforcement community." Opposition at 8. The Agency asserts that throwing the knife away compromised security because someone could find a prohibited knife that was improperly abandoned and that the grievant's conduct impeded its ability to take action against the subject. Id. The Agency also explains that, if the knife was considered personal property, throwing it away prevented the appropriate return of the knife. Id.

      The Agency disagrees with the Union's conclusion that an officer's call to a superior to obtain clarification of the requirements as to whether to seize the knife, illustrated that the SOPs and regulations were unclear. Opposition at 8. According to the Agency, the Arbitrator found that the officer called the superior because the grievant's actions lacked "logic and credulity." Id.

      The Agency asserts that the SOP, instructing that evidence lockers be utilized only for seized property considered evidence, does not support the grievant's action of discarding the knife with the owner's permission. Id. at 9. Instead, the Agency contends that the SOP does not allow officers to throw away dangerous weapons found in the possession of a person on the base. Id.

      The Agency, in addressing the Union's claim that an officer has discretion to determine what crime has been committed and that the grievant appropriately determined there was no crime with regard to the knife, asserts that the grievant had no way of knowing if a criminal act had been committed with the knife. Id. at 6-7. The Agency claims that the grievant only knew that the subject was speeding, was intoxicated and in possession of a dangerous weapon prohibited on base. Id. at 7.

      The Agency argues that the Arbitrator found that officers knew and understood the types of weapons prohibited on base and found "incredible" the Union's assertion that the grievant did not understand the knife was a prohibited item and believed that he could informally dispose of it. Id. The Agency explains that the Arbitrator correctly concluded that the grievant did not have the right to ignore the weapons violation and decline to issue a citation. Opposition at 7.

      Turning to its SOPs and regulations, the Agency argues that the SOPs and regulations allow an officer to use good judgment while making decisions "relative to duties" and to determine the relevant evidence to an investigation, but they do not state, per se, that an officer's responsibilities are discretionary. Id. The Agency asserts the SOPs and regulations actually express that a failure to abide by the procedures may result in disciplinary action. Id. [ v60 p39 ]

IV.     Analysis and Conclusions

A.     The Union has not established that the award is based on nonfact.

      When an exception alleges that an award is based on nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993) (Lowry AFB). The mere fact that the appealing party disputes an arbitral finding does not provide a basis for concluding that an award is based on a nonfact. AFGE, Local 1923, 51 FLRA 576, 579 (1995).

      The Authority also will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. Lowry AFB, 48 FLRA at 594 (citing Mailhandlers v. United States Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).

      The Union argues that the award was based on the Arbitrator's erroneous determination that the grievant was the officer in charge of the incident. Exceptions at 2. Based on the record's joint exhibits submitted to the Authority by both parties, the record illustrates that this issue was presented to the Arbitrator. Joint Exhibit 3 (containing the Incident Report as well as supporting documents). The Arbitrator recognized that multiple officers were involved in the incident and concluded that the grievant was the officer in charge, one officer was in training, another simply removed the knife from the subject's jacket and the others were not actively involved until after the fact. Award at 4. Because the Arbitrator made a factual finding based on an issue disputed at arbitration, the award is not deficient as based on nonfact. Lowry AFB, 48 FLRA at 594.

B.     The Union did not raise due process or just cause with the Arbitrator.

      Under 5 C.F.R. § 2429.5, an issue that could have been but was not presented before an arbitrator will not be considered by the Authority. United States Dep't of the Air Force, Air Force Materiel Command, Robins Air Force Base, Ga., 59 FLRA 542, 544 (2003). The Agency asserts that the Union raises its due process argument for the first time in its exceptions. Opposition at 3. There is no evidence in the award or the record that the Union's argument, that the Agency's actions in suspending the grievant violated the grievant's due process rights, was presented to the Arbitrator. As the issue relates to the procedures the Agency utilized before the grievance procedure was invoked, the issue could and should have been presented to the Arbitrator. United States Dep't of Veterans Affairs, Gulf Coast Veterans Health Care Sys., Biloxi, Miss., 57 FLRA 77, 79 (2001) (citations omitted). Therefore, in accordance with 5 C.F.R. § 2429.5, the issue will not be addressed and the due process exception denied.

C.     The Union has not established that the award is contrary to Agency rules and regulations.

      When an exception alleges that an award is contrary to law, the Authority reviews the question of law raised and the award de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to an arbitrator's underlying factual findings. Id.

      Under SOP 019, an officer is required to use sound judgment when analyzing information. Joint Exhibit 13 at 2. This SOP does not specifically give an officer discretion to dispose of a dangerous weapon informally. Id.

      Most importantly, the regulation entitled "Collection/Disposal of Evidence" clearly limits an officer's discretion in certain circumstances. Joint Exhibit 12. It states that an officer, upon arriving at a crime scene and finding evidence, contraband or found property, should "have the shift supervisor/watch commander or FTO [field training officer] respond to the scene to determine if notification of CID is warranted and if in fact what [is] located is considered evidence or found property." Id. The instruction gives examples of CID notification and explicitly includes all weapons violations. Id. This instruction appears to strictly limit an officer's discretion upon discovering a weapons violation. According to 5560.5F, a knife with at least a 2 and one-half inch blade is classified as a dangerous or deadly weapon. Joint Exhibit 10.

      The Union acknowledges that the grievant was aware that there was an Agency rule prohibiting the possession of a knife of a certain size on the base and the Arbitrator found that the grievant was aware of the relevant Agency regulations and SOPs. Award at 4, Exceptions at 3. The Arbitrator concluded, "[a] police officer's obligation is to seize and cite, not adjudicate." Award at 5. The Arbitrator's conclusion that any decision to proceed on the possible weapons violation other than a citation was a "supervisory or a managerial call" [ v60 p40 ] is consistent with the Agency's regulations dealing with the discovery of a weapon. Id.; Joint Exhibit 12.

      In agreement with the Arbitrator's interpretation of these regulations, we find that the Union has not established that the Agency SOPs and regulations granted the grievant the discretion to informally confiscate the subject's knife and dispose of it in a garbage can. On the contrary, the Agency SOPs and regulations create a protocol that specifically limits an officer's discretion upon discovering an item classified as a dangerous or deadly weapon. Therefore, the Union has not established that the award is inconsistent with the Agency SOPs and regulations. NAGE, Local R12-33, 51 FLRA 541, 544 (1995).

V.     Decision

      The Union's exceptions are denied.


APPENDIX

Instruction 5560.5F in pertinent part:

4004          Possession of Dangerous and Deadly
          Weapons

      1. Prohibited Articles. No person shall possess, concealed about his person, in a private vehicle or government vehicle, use or have under his control, except when authorized by proper authority in connection with the required duties of that individual, and then only for the period necessary for the performance of those duties, any of the following: . . .

b.     Any dangerous or deadly weapons, to wit any instrument or the weapon of the kind commonly known as a:
     (9) Knife with a blade 2 ½" or longer.

Standard Operating Procedure 039 -- Evidence, Identification, Documentation, Collection and Processing

      2.     Policy:

CNRSW Force Protection assets will take all reasonable steps to identify, document, collect and process evidence to ensure its admissibility in court. These procedures must be strictly followed and enforced. Failure to comply with procedures may impair our ability to successfully prosecute violations and may result in disciplinary action. The investigating officer at a crime scene is responsible for determining what criminal act has taken place, if any. This is most commonly achieved by conducting interviews and identifying, collecting and analyzing the physical evidence at the scene. . . .

Standard Operating Procedure 019 - Police Patrol Duties and Responsibilities

      3.     Decision Making Process:

A good patrol officer must demonstrate good sound logic in making decisions. He must first collect information. . . . The officer must then analyze the information, form a conclusion and take appropriate action. The importance of making good sound decisions in the field cannot be understated. . . . The decision making process, employed by a police officer is perhaps the most valuable asset he possesses.

Joint 12 - Collection/Disposal of Evidence, in pertinent part:

Evidence Seizure: [ v60 p41 ]

1.     When you, Force Protection Personnel arrive at a crime scene or are at the point of entry into a federal installation and you come upon evidence, contraband, found property, etc., have the shift supervisor/watch commander or FTO respond to the scene to determine if notification of CID is warranted and if in fact what you have located is considered evidence or found property.
2     Examples of CID notification are:
     . . . .
     B.     All weapons violations
     . . . .

Evidence Collected from Civilians:

     1