United States, Department of Homeland Security, U.S. Customs and Border Protection, United States Border Patrol, El Paso, Texas (Agency) and American Federation of Government Employees, Local 1929, National Border Patrol Council (Union)

[ v60 p883 ]

60 FLRA No. 162

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
U.S. CUSTOMS AND BORDER PROTECTION
UNITED STATES BORDER PATROL
EL PASO, TEXAS
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1929
NATIONAL BORDER PATROL COUNCIL
(Union)

0-AR-3897

_____

DECISION

April 26, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Joe D. Woodward filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions. [n2] 

      The Arbitrator sustained a grievance, which alleged that the Agency improperly imposed a one-day suspension on the grievant. For the reasons set forth below, we deny the exceptions.

II.     Background and Arbitrator's Award

      On September 6, 1999, the grievant was involved in a traffic accident while driving a government vehicle. [n3]  An Agency investigation of the accident was completed on September 9 and, on September 29, the Deputy Chief Patrol Agent recommended disciplinary action to the Central Region Assistant Director. See Award at 2. On November 4, the grievant was issued a notice proposing to suspend him for one day for negligently operating a vehicle. On February 28, 2000, the Agency issued a final decision suspending the grievant for one day.

      The Union filed a grievance challenging the suspension, which was unresolved and was submitted to arbitration. As relevant here  [n4] , the parties stipulated the issue to be: "Whether the Agency violated Article 32, G of the collective bargaining agreement by failing to issue a proposal to discipline in a reasonable time and, if so, what shall the remedy be?" [n5]  Id. at 3.

      The Arbitrator stated that other arbitrators have interpreted Article 32, § G of the parties' agreement (hereinafter § G) to require the Agency to notify employees of proposed discipline "at the earliest practicable date after [an] investigation is completed." Id. at 12. The Arbitrator also stated that "earliest practicable date" has been interpreted to mean "as soon as able to be done" and to be "the date the Agency [knows] the specific discipline that [is] being proposed[.]" Id. Consistent with these awards, the Arbitrator found that the Agency has a responsibility under § G to proceed with disciplinary actions in a prompt and expeditious manner and that once the Agency determines that it is going to discipline an employee, it is under an "obligation" to advise the employee of the discipline. Id. at 13. Based on his interpretation of § G, the Arbitrator found that the [ v60 p884 ] Agency's delay in issuing the "proposed disciplinary action from September 29, 1999 . . . until at least November 4, 1999, or over a month without explanation[,]" violated § G. Id. at 13. The Arbitrator sustained the grievance and ordered the Agency to void the grievant's suspension and make him whole.

III.     Positions of the Parties

A.      Agency's Exceptions

      The Agency claims that the award is contrary to law. Specifically, it asserts that, contrary to Hidalgo v. Dep't of Justice, 93 MSPR 645 (2003) (Hidalgo) and an arbitration award issued by Arbitrator Adler, the arbitrator did not require the Union to provide evidentiary support for its allegation that the Agency violated § G. [n6]  See Exceptions at 7-8. The Agency also claims that the award is contrary to law because the Arbitrator did not follow an arbitration award issued by Arbitrator Goodman. [n7]  See id. at 8-10.

      The Agency next contends that the award is based on nonfacts because there is no evidence to support the Arbitrator's findings that the Agency "delayed" issuing the notice of proposed discipline to the grievant and that the Agency did not issue the notice "as soon as practicable[.]" Id. at 5. The Agency asserts that these issues were not disputed before the Arbitrator. See id. at 4, 5. In addition, the Agency contends that the award is based on a nonfact because the Arbitrator "mistakenly assumed" that the Agency decided to suspend the grievant on September 29. Id. at 6.

      The Agency claims that the award fails to draw its essence from the parties' agreement. In this regard, the Agency asserts that the Arbitrator's interpretation of § G is not plausible because he failed to examine the phrase "to the extent practicable" in the context of the agreement and take into account circumstances beyond the Agency's control. Id. at 11-12.

B.      Union's Opposition

      The Union disputes the Agency's claim that the award is contrary to law. In this regard, the Union asserts that, in the absence of a prescribed burden of proof, arbitrators have the authority to establish any burden of proof they consider appropriate. See Opposition at 19. The Union also asserts that the Agency's reliance on prior arbitration awards is misplaced because such awards are not precedential. See id. at 24.

      The Union claims that the award is not based on nonfacts. Specifically, the Union contends that the Arbitrator's findings that the Agency delayed in issuing the notice of proposed discipline and did not issue the notice as soon as practicable are not clearly erroneous central facts, but for which the Arbitrator would have reached a different result. See id. at 8-12. The Union also contends that these issues were disputed before the Arbitrator. See id. at 7. In addition, the Union disputes that the Arbitrator mistakenly determined that the Agency decided to suspend the grievant on September 29. The Union asserts that the Arbitrator merely determined, from the facts in evidence, that the Agency should have provided the grievant with the notice of proposed discipline on or around September 29, not November 4. See id. at 18.

      The Union further asserts that the award draws its essence from the parties' agreement. Specifically, the Union contends that the Arbitrator's interpretation of § G and the phrase "to the extent practicable" is plausible. See id. at 32.

IV.     Analysis and Conclusions

A.      The award is not contrary to law.

      When a party's exceptions challenge an award's consistency with law, the Authority reviews the exceptions de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Agency asserts that the award is contrary to Hidalgo because the Arbitrator did not require the Union to provide evidentiary support for its allegation [ v60 p885 ] that the Agency violated § G. See Exceptions at 7-8. However, arbitrators are not bound by the same substantive standards as the MSPB when resolving grievances concerning actions not covered by 5 U.S.C. §§ 4303 and 7512. See NAGE, Local R1-109, 46 FLRA 451, 454 (1992). As the grievant's suspension was for one day, it is not covered by §§ 4303 and 7512 and is not appealable to the MSPB. Accordingly, the Arbitrator was not required to apply MSPB standards regarding burden of proof. See id. Moreover, in the absence of a specified standard of proof, arbitrators have the authority to establish whatever standard they consider appropriate and the Authority will not find an award deficient because a party claims that an incorrect standard was used. See Soc. Sec. Admin., Balt., Md., 57 FLRA 181, 184 (2001). As the Agency has not demonstrated that the Arbitrator was required to follow a specified standard of proof, there is no basis for finding the award deficient in this respect.

      With regard to the Agency's claim that the Arbitrator failed to follow prior arbitration awards, it is well-established that arbitration awards are not precedential. See, e.g., AFGE, Local Union No. 171, 58 FLRA 469, 471 (2003). Consequently, a contention that an arbitration award conflicts with other arbitration awards provides no basis for finding the award deficient under the Statute. See id.

      Accordingly, we deny the exception asserting that the award is contrary to law.

B.      The award is not based on nonfacts.

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). The Authority will not find an award deficient on the basis of the arbitrator's determination of any factual matter that the parties disputed at arbitration. See id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)).

      The Agency contends that the award is based on nonfacts because there is no support for the Arbitrator's findings that the Agency "delayed" in issuing the notice of proposed discipline and that the Agency did not issue the notice "as soon as practicable[.]" Exceptions at 5. Contrary to the Agency's assertions, the parties disputed both of these matters before the Arbitrator. In this regard, the Union claimed that the Agency "delay[ed]" in issuing the notice of proposed discipline, Award at 9, and the Agency contended that the time between the conclusion of the investigation and the issuance of the notice of proposed discipline was not "outside the limits of reasonableness[.]" Id. at 6. In addition, the Union argued that the Agency did not issue the notice of proposed discipline "at the earliest practicable date[,]" id. at 9, while the Agency contended that it issued the notice at the "earliest practicable time[.]" Id. at 6. As the parties disputed these matters before the Arbitrator, the Agency's exceptions provide no basis for finding the award deficient as based on nonfacts. See SSA, Region 5, 58 FLRA 59, 62 (2002).

      The Agency also contends that the award is based on a nonfact because the Arbitrator mistakenly determined that the Agency decided to suspend the grievant on September 29. See Exceptions at 6. However, there is no indication in the award that the Arbitrator made such a determination. Instead, the Arbitrator found that the Deputy Chief Patrol Agent recommended disciplinary action to the Central Region Assistant Director on September 29. The Arbitrator then determined that the Agency's delay in issuing the notice of proposed discipline from September 29 to November 4 violated § G. As the Agency has not demonstrated that a central fact underlying the award is clearly erroneous, the exception provides no basis for finding the award deficient as based on a nonfact. See United States Dep't of Agric., Farm Serv. Agency, Kansas City, Mo., 55 FLRA 1060, 1063 (1999).

      Based on the foregoing, we deny the Agency's nonfact exceptions.

C.      The award draws its essence from the parties' agreement.

      The Agency contends that the award fails to draw its essence from § G. See Award at 12-13. In order for an award to be found deficient because it does not draw its essence from a collective bargaining agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purpose of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it [i]s the arbitrator's construction of the agreement for which the parties bargained[.]" Id. at 577. [ v60 p886 ]

      The Arbitrator noted that other arbitrators have interpreted § G to require the Agency to notify employees of proposed discipline "at the earliest practicable date after [an] investigation is completed." Award at 12. He also noted that "earliest practicable date" has been interpreted to mean "as soon as able to be done" and is "the date the Agency [knows] the specific discipline that [is] being proposed[.]" Id. Based on the foregoing, the Arbitrator found that the Agency should have issued the notice of proposed suspension "much earlier" than it did and that the Agency's delay in issuing the notice, from September 29 to November 4, violated the parties' agreement. Id. at 12-13.

      Consistent with the foregoing and contrary to the Agency's claim, the Arbitrator's interpretation of § G is not irrational, implausible, and does not evidence a manifest disregard for the parties' agreement. See Int'l Ass'n of Machinists & Aerospace Workers, Dist. Lodge 725, Local Lodge 726, 60 FLRA 196, 200 (2004). Accordingly, the Agency has not established that the award fails to draw its essence from the parties' agreement, and we deny the exception.

V.     Order

      We deny the Agency's exceptions.


Dissenting Opinion of Member Armendariz:

      I would find the award deficient as failing to draw its essence from the parties' collective bargaining agreement. The Arbitrator concluded that the Agency violated Article 32, Section G by "delaying" the issuance of the proposed disciplinary action for 31 days. In my view, the award is implausible because nothing in the award supports the Arbitrator's determination. The Arbitrator did not identify what would have constituted "the earliest practicable date" for issuing the notice of proposed suspension, nor did he find in what manner the Agency "delayed" issuing the proposed disciplinary action. Further, the Arbitrator's finding that the Agency's contract violation constituted a "deprivation of due process" similarly lacks any foundation. Award at 14. The Arbitrator did not find what the grievant's due process rights were, how they were violated, or how the grievant was unable to defend against the charge and the penalty imposed on him. For these reasons, I would set aside the award.



Footnote # 1 for 60 FLRA No. 162 - Authority's Decision

   Member Armendariz' dissenting opinion is set forth at the end of this decision.


Footnote # 2 for 60 FLRA No. 162 - Authority's Decision

   The Authority's Case Control Office directed the Union to cure a procedural deficiency in its opposition by December 21, 2004. See Deficiency Order at 1. On December 29, 2004, the Union did so and requested a waiver of the expired deadline, asserting that it did not receive the order until December 27, 2004. See Union's Response to Deficiency Order at 3. As the United States Postal Service Domestic Return Receipt for the Union's copy of the deficiency order supports the Union's assertion, we grant the Union's motion and consider the opposition. See United States DHHS, Appalachian Lab. for Occupational Safety & Health, Nat'l Inst. for Occupational Safety & Health, Ctrs. for Disease Control & Prevention, 49 FLRA 1150, 1151 (1994).


Footnote # 3 for 60 FLRA No. 162 - Authority's Decision

   Unless otherwise specified, all dates refer to 1999.


Footnote # 4 for 60 FLRA No. 162 - Authority's Decision

   The parties also stipulated the issue of whether the suspension was for just cause and, if not, what the remedy should be. As the Arbitrator determined that it was unnecessary to address this issue and this determination is not disputed, we do not further address the issue.


Footnote # 5 for 60 FLRA No. 162 - Authority's Decision

   Article 32, Section G of the parties' agreement states:

[t]he employer shall furnish employees with notices of proposed disciplinary/adverse actions at the earliest practicable date after the alleged offense has been committed and made known to the employer. It is understood criminal investigations outside the contro