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)

[ v61 p4 ]

61 FLRA No. 2

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-3896

_____

DECISION

June 3, 2005

_____

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 I.B. Helburn 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.  [n1] 

II.      Background & Arbitrator's Award

A.      Background

      On July 9, 2000, the grievant, a Border Patrol Agent, was scheduled to work an 11 p.m. shift. [n2]  At about 9 p.m. that night, the grievant called his supervisor to inform him that he was ill and the supervisor granted the grievant sick leave. Later that night, the grievant encountered and spoke to an off-duty Supervisory Border Patrol Agent at a bar. According to the Supervisory Agent, their "three-minute conversation did not leave [him] with the impression that [the grievant] was ill." Award at 4. The Supervisory Agent mentioned his encounter with the grievant to the Assistant Patrol Agent in Charge (APAIC), triggering an investigation during which the APAIC "obtain[ed] memos from relevant individuals." Id. at 5.

      On July 14, the APAIC wrote a memorandum to the Chief Patrol Agent, stating that the grievant had used "approximately 137 hours of sick leave in 2 years and 10 months[,]" including 84.4 hours of sick leave in fiscal year 2000, and advising the Chief Patrol Agent that: "It is apparent that [the grievant] is developing a pattern of sick leave abuse and on July 9, 2000 requested sick leave improperly which is a ground for disciplinary action." Id. (quoting Jt. Ex. 4 at 1).

      On July 18, the Assistant Chief Patrol Agent issued a letter proposing a five-day suspension because the grievant "had asked for sick leave" on July 9 "when he `did not intend to report to work on this date[.]'" Id. (quoting Jt. Ex. 1).

      The grievant and the Union provided written responses to the deciding official. The deciding official issued his decision to impose the five-day suspension. The Union grieved the suspension and, when the parties could not resolve the grievance, they submitted the matter to arbitration.

B.     Arbitrator's Award

      The Arbitrator framed the issue as follows: "Did the Agency impose a five-day disciplinary suspension on the grievant only for cause that was just and sufficient and only for such reasons as will promote the efficiency of the Service and if not, what is the appropriate remedy?" Id. at 7.

      The Arbitrator found that, under Article 32(D) of the parties' agreement, an employee is entitled to "'an advance written notice stating the specific reasons for the proposed action[.]'" Id. at 10 (quoting Jt. Ex. 11). In addition, the employee is entitled to receive a "`formal written decision, and the specific reasons therefore [sic]' after the deciding official has considered `only the [ v61 p5 ] reasons specified in the notice and the material in the investigatory and disciplinary files.'" Id.

      The Arbitrator found that the grievant was given the proposed letter of suspension because he "asked for sick leave when he `did not intend to report to work on this date.'" Id. at 5 (quoting Jt. Ex. 1). According to the Arbitrator, "[t]he proposed suspension did not occur because of any more general pattern of sick leave abuse." Id. Further, the Arbitrator found that the "grievant's pattern of sick leave was material to [the deciding official's] decision, as he might have ordered a lesser suspension but for the prior counseling and the pattern of sick leave [use]." Id. at 6. In this connection, the Arbitrator found that the deciding official's testimony at the hearing "establishes without any ambiguity" that he considered elements of the grievant's record "that were not a part of the specific reason for which the suspension was proposed." Id. at 12. The Arbitrator further found that employees' contractual right to respond to charges against them "becomes meaningless" if employees are not given "full, complete and specific notice of the reasons to be considered by the deciding official." Id.

      The Arbitrator concluded that the Agency's failure to provide the grievant with "all of the specifics to be considered by the deciding official" constituted "the deciding official's enlargement of the charges against the grievant, [and] created a fatal contract violation." Id. at 13. The Arbitrator found that such a violation "requires that the discipline be set aside without consideration of the merits" because, in these circumstances, "[n]o discipline" could be considered "just and sufficient" or "viewed as promoting the efficiency of the Service . . . ." Id.

      The Arbitrator sustained the Union's grievance and, as a remedy, ordered the Agency to void the grievant's suspension; expunge all records, information, and documents related to this matter; and make the grievant whole. [n3] 

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency asserts that the award is contrary to law for two reasons: (1) the Agency provided the grievant with sufficient notice of the charge against him in a manner which provided him the opportunity to defend against the action; and (2) the alleged "due process error" occurred in the penalty stage of the action and not in the Agency's determination to sustain the charge. Exceptions at 2. Specifically, the Agency contends that the Arbitrator's finding that the Agency violated the grievant's due process rights is contrary to 5 U.S.C. § 7503, 5 C.F.R. § 752.203, and Authority precedent.

      The Agency states that under 5 U.S.C. § 7503 and Article 32(D)(1) of the parties' agreement, the grievant was entitled to advance notice stating the specific reasons for the proposed suspension; and that under 5 C.F.R. § 752.203, the proposed notice was required to inform the grievant of his right to review the material relied on to support the reasons for the action. See Exceptions at 5-6. The Agency asserts that it complied with all of these requirements in this case. According to the Agency, the proposal letter put the grievant on sufficient notice to defend against the action because: (1) the grievant was charged with abuse of sick leave; (2) the specification "clearly detailed the factual basis for the action"; (3) the grievant's responses to the proposed discipline "clearly evidence that he was aware of the factual basis for the discipline"; and (4) the grievant was provided with the materials the Agency relied on, which "detailed [the g]rievant's prior sick leave usage and the fact that he had been advised by his supervisors regarding the proper use [of] sick leave." Id. at 7-8 (citing Jt. Exs. 5, 6, and 4).

      The Agency also argues that the Arbitrator erred in finding a due process violation because "the alleged error occurred in the penalty stage of the action and not in the Agency's determination to sustain the charge." Id. at 9. Citing Merit Systems Protection Board (MSPB) precedent, the Agency contends that "reliance on misconduct that was not included in the proposal letter has not been considered a denial of due process." Id. (citation omitted). The Agency further argues that requiring the proposal notice to specifically state that the deciding official would rely on the grievant's knowledge of the Agency's sick leave policy and the grievant's prior sick leave usage "would essentially require the Agency to list the Douglas factors in the proposal letter." Id. at 10. [n4]  According to the Agency, such a requirement is "clearly contrary to law." Id. Even if it is not contrary to law, the Agency asserts that the appropriate remedy is not to find a due process error, "but for the trier of fact to conduct their own penalty analysis." Id. [ v61 p6 ]

B.     Union's Opposition

      Noting "the virtually identical and relevant provisions of Article 32 D of the [parties' agreement], 5 U.S.C. § 7503(b), and 5 C.F.R. §§ 752.202, and 752.203, which all relate to an employee's pre-decisional due process rights of notice, opportunity to respond, procedure, and standard for action[,]" the Union asserts that all of these provisions are "relevant and controlling . . . when it comes to the [g]rievant's statutory, regulatory and contractual pre-decisional due process rights." Opposition at 6-7. According to the Union, the Agency has not demonstrated that the award is contrary to law because the MSPB precedent relied on by the Agency is not relevant to suspensions of 14 days or less taken pursuant to these statutory and contractual provisions.

      Further, the Union claims that "the sole charge and reason for the proposed five-day suspension was limited exclusively to the [g]rievant's alleged abuse of sick leave on July 9, 2000, [and] nothing more." Id. at 9. In this connection, the Union contends that, as found by the Arbitrator, the grievant was not given notice by the Agency that "in considering its proposed charge and penalty, the [A]gency was also going to consider an alleged record of prior leave usage and/or possible pattern of prior sick leave use." Id. (citing Award at 10). The Union argues that the grievant's prior use of sick leave, which was first brought up in testimony before the Arbitrator, should have been cited as a reason for the discipline in the proposal notice. Further, the Union disputes the Agency's argument that, even if the prior leave use should have been included in the proposal notice, the Agency's compliance with 5 U.S.C. § 7503 and 5 C.F.R. § 752.203(b) cured any error. See Opposition at 11.

      Based on the foregoing, the Union asserts that the Agency has failed to establish that the award is contrary to law.

IV.     Discussion

      There is no dispute in this case that, as the Union states, 5 U.S.C. § 7503(b), 5 C.F.R. § 752.203, and Article 32(D) are "virtually identical" and that these provisions are "relevant and controlling . . . when it comes to the [g]rievant's statutory, regulatory and contractual pre-decisional due process rights." Opposition at 7. As such, for purposes of this case, we find that the statutory, regulatory, and contractual provisions must be interpreted consistently. Accordingly, in determining whether the award is contrary to law, we will examine whether the Arbitrator's interpretation and application of Article 32(D) is consistent with the statutory and regulatory provisions. [n5] 

      The Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of 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 such a determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      Under 5 U.S.C. § 7503, "an employee may be suspended for 14 days or less for such cause as will promote the efficiency of the service[.]" [n6]  The Authority has previously held that employees subject to suspensions of 14 days or less under 5 U.S.C. § 7503 are entitled to pre-decisional proceedings no more formal or extensive than an oral or written notice of the charges, an explanation of the employer's evidence, and an opportunity for the employee to present his or her side of the story. See AFGE, Local 3495, 60 FLRA 509, 510-11 (2004); AFGE, Local 1151, 54 FLRA 20, 26-27 [ v61 p7 ] (1998); United States Dep't of Veterans Affairs, Nat'l Mem'l Cemetery of the Pac., 45 FLRA 1164, 1177 (1992).

      In the present case, the Agency provided the grievant with a written notice of the proposed suspension, which informed the grievant that the charge against him resulted from his abuse of sick leave and described the events on July 9. In addition, the Agency provided the grievant with the material relied on by the Agency to propose the charge. [n7]  The grievant was also afforded an opportunity to, and did, respond to the charges against him. See Jt. Exs. 5 and 6. As such, the grievant's due process rights under § 7503 were satisfied. See, e.g., AFGE, Local 3495, 60 FLRA at 510-11; AFGE, Local 1151, 54 FLRA at 26-7; United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 596-97 (1993). The Authority has previously found that findings with regard to 5 U.S.C. § 7503(b) apply to 5 C.F.R. § 752.203 as well. See NTEU, Chapter 45, 52 FLRA 1458, 1465 (1997). Accordingly, as the grievant's due process rights were satisfied under 5 U.S.C. § 7503, they were satisfied under 5 C.F.R. § 752.203. Therefore, the Arbitrator's finding that the grievant's due process rights were violated is contrary to law.

      As set forth above, the parties agree that the statutory, regulatory, and contractual provisions must be interpreted consistently. Accordingly, as the Agency did not violate the statutory and regulatory provisions, it also did not violate the parties' agreement. Therefore, we conclude that the Arbitrator's determination that the Agency violated Article 32(D) is also deficient.

      The Arbitrator did not address the merits of the grievance. Having determined that the Arbitrator erred in finding that there was not just and sufficient cause for the discipline based on his finding of a due process violation, consistent with Authority precedent, we remand this matter to the parties for resubmission to the Arbitrator, absent settlement, for a decision on the merits of the grievance. See, e.g., AFGE, Local 987, 57 FLRA 551, 557 (2001).

V.     Decision

      The award is set aside. The matter is remanded to the parties for resubmission to the Arbitrator, absent settlement, for a decision on the merits of the grievance.



Footnote # 1 for 61 FLRA No. 2 - Authority's Decision

   The Authority's Case Control Office directed the Union to cure a procedural deficiency in its opposition by December 22, 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 2. 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 Dep't of Homeland Sec., United States Customs & Border Prot., United States Border Patrol, El Paso, Tex., 60 FLRA 883, 883 n.2 (2005) (citing 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 # 2 for 61 FLRA No. 2 - Authority's Decision

   Unless otherwise noted, all dates refer to 2000.


Footnote # 3 for 61 FLRA No. 2 - Authority's Decision

   The Arbitrator also found that the Agency waived its claim that the grievance was not arbitrable. See Award at 13. As neither party excepts to the arbitrability of the grievance, we do not address this issue further.


Footnote # 4 for 61 FLRA No. 2 - Authority's Decision

   The Douglas factors enunciated by the MSPB essentially constitute guidelines governing the appropriateness of penalties for adverse actions under 5 U.S.C. § 7512. See AFGE, Local 2052, 56 FLRA 604, 608 n.3 (2000). Arbitrators are not required to apply the Douglas factors in cases, such as the instant case, involving suspensions of 14 days or less, which are not covered by 5 U.S.C. § 7512. See, e.g., AFGE, Local 3947, 47 FLRA 1364, 1370-71 (1993).


Footnote # 5 for 61 FLRA No. 2 - Authority's Decision

   We note that the Authority has applied statutory standards in assessing the application of contract provisions that mirror, or are intended to be interpreted in the same manner as, the Statute. See ACT, Show-Me Army Chapter, 58 FLRA 154, 155 (2002); NFFE, Local 2010, 55 FLRA 533, 534 (1999); United States Dep't of Justice, Fed. Corr. Facility, El Reno, Okla., 51 FLRA 584, 589 n.5 (1995). The Authority has done so where one party asserted, and the other party did not dispute, that the contract provision reiterated the statutory provision. See NFFE, Local 2010, 55 FLRA at 534.


Footnote # 6 for 61 FLRA No. 2 - Authority's Decision

   5 U.S.C. § 7503 further provides, in pertinent part:

(b) An employee against whom a suspension for 14 days or less is proposed is entitled to --
     (1) an advance written notice stating the specific reasons for the proposed action;
     (2) a reasonable time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;
     (3) be represented by an attorney or other representative; and
     (4) a written decision and the specific r