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 p393 ]

61 FLRA No. 72

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
(61 FLRA 4 (2005))

_____

ORDER DENYING
MOTION FOR RECONSIDERATION

November 21, 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 the Union's motion for reconsideration of the Authority's decision in United States Dep't of Homeland Sec., U.S. Customs & Border Prot., United States Border Patrol, El Paso, Tex., 61 FLRA 4 (2005) (Border Patrol, El Paso). The Agency filed an opposition to the Union's motion. [n1] 

      Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. For the following reasons, we find that the Union has failed to establish extraordinary circumstances, and deny the Union's motion.

II.      Decision in Border Patrol, El Paso,
          61 FLRA 4 (2005)

      The award in Border Patrol, El Paso involved the 5-day suspension of a Border Patrol Agent for abuse of sick leave. The discipline arose after a supervisor saw the grievant at a bar when, earlier that same night, the grievant had requested, and was granted, sick leave. The Arbitrator set aside the discipline without considering the merits of the grievance. As relevant here, the Arbitrator found that, by issuing the 5-day suspension, the Agency violated the grievant's due process rights under Article 32(D) of the parties' agreement because the deciding official "considered elements of the grievant's record that were not a part of the specific reason for which the suspension was proposed." [n2]  Border Patrol, El Paso, 61 FLRA at 5 (internal citations omitted). The Arbitrator further found 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. The Arbitrator found that such a violation required that he dismiss the charge without considering the merits of the case.

      The Agency filed timely exceptions arguing that the Arbitrator's finding of a due process violation was contrary to law. Specifically, the Agency argued that the award was contrary to 5 U.S.C. § 7503, 5 C.F.R. § 752.203, and Authority precedent.

      The Authority set aside the award and remanded the matter to the parties for resubmission to the Arbitrator, absent settlement, for a decision on the merits of the grievance. Consistent with precedent, the Authority found 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 id. at 6. The Authority found that the grievant's due process [ v61 p394 ] rights were satisfied because: (1) the grievant was provided with written notice of the proposed suspension; (2) the Agency provided the grievant with the materials relied on by the Agency to propose the charges; and (3) the grievant was provided an opportunity to, and did, respond to the charges against him. As such, the Authority found that the Arbitrator's award was contrary to law. Further, as there was no dispute that the statutory, regulatory, and contractual due process provisions must be interpreted consistently, and having found that the Agency did not violate the statutory and regulatory provisions, the Authority also found that the Arbitrator's determination that the Agency violated Article 32(D) was also deficient.

III.     Positions of the Parties

A.     Union's Motion for Reconsideration

      First, the Union argues that the Authority's decision is inconsistent with the Arbitrator's factual findings. Specifically, the Union alleges that the Authority's decision is inconsistent with "the Arbitrator's finding of fact that the [A]gency's proposed suspension was based on a singular act of alleged sick leave abuse, occurring on July 9, 2000, and nothing more[.]" Motion for Reconsideration at 10.

      The Union also asserts that the Authority erred in finding that the grievant's due process rights were satisfied pursuant to 5 U.S.C. § 7503(b) and 5 C.F.R. § 752.203 because the grievant was "aware that his prior use of sick leave was part of the material relied on by the Agency in deciding to propose the suspension and in determining whether to sustain the charge." Motion for Reconsideration at 9 (emphasis omitted) (quoting Border Patrol, El Paso, 61 FLRA at 7 n.7).

      The Union further asserts that the Authority's decision violates Article 14(H) and Article 21(A) of the parties' agreement. [n3]  In this regard, the Union asserts that in finding that the grievant's due process rights were satisfied, the Authority has "reliev[ed]" the Agency of its contractual requirements to produce reasonable evidence of the grievant's prior sick leave abuse and to ensure that the employee is aware of derogatory material in his work folder. Id. at 14, 17.

      In addition, the Union contends that the Authority's decision is inconsistent with Authority precedent relating to due process. In this regard, the Union cites United States Dep't of the Air Force, Robins Air Force Base, Warner Robins, Ga., 41 FLRA 635, 637-40 (1991), to demonstrate that the Authority "has adopted [Merit Systems Protection] Board interpretation and case law when it comes to the significant difference between [absent without leave] AWOL and a charge of failure to follow leave procedures." Motion for Reconsideration at 19. The Union also cites this case for the proposition that the Authority has stated that "charges must be distinct and specific enough for an employee to make an informed response[.]" Id.

      Finally, the Union argues that the Authority failed to cite 5 C.F.R. § 752.203(e) in its decision and that the Arbitrator's underlying findings of fact demonstrate that the Agency violated this provision. See id. at 21.

B.     Agency's Opposition

      The Agency alleges that the Authority did not make any findings that are inconsistent with the Arbitrator's factual findings and that "the Union simply disagrees with the Authority's application of the facts to this case." Opposition at 5. Further, with regard to the Union's allegation that the Authority's decision is inconsistent with the parties' agreement and Authority precedent, the Agency alleges that the contractual provisions and case law cited by the Union relate to issues that the Authority did not address.

IV.     Analysis and Conclusions

      Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. The Authority has repeatedly recognized that a party seeking reconsideration of an Authority decision under § 2429.17 bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. See, e.g., United States Dep't of the Treasury, Internal Revenue Serv., Wash., D.C., 56 FLRA 935, 936 (2000). The Authority has identified a limited number of situations in which extraordinary circumstances have been found to exist. These include situations: (1) where an intervening court decision or change in the law affected dispositive issues; (2) where [ v61 p395 ] evidence, information, or issues crucial to the decision has not been presented to the Authority; (3) where the Authority erred in its remedial order, process, conclusion of law, or factual finding; and (4) where the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in its decision. See United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84, 85-87 (1995).

      In its motion for reconsideration, the Union first argues that extraordinary circumstances exist because the Authority's decision is inconsistent with the Arbitrator's factual findings. The Union's claim with respect to this argument "confuse[s] the Authority's obligation to defer to factual findings and contract interpretations with its duty to review legal conclusions de novo." United States Dep't of the Treasury, IRS, Denver, Colo., 60 FLRA 893, 894 (2005), petition for review filed sub nom. NTEU v. FLRA, No. 05-1230 (D.C. Cir. July 1, 2005). In this regard, although the Authority defers to an arbitrator's factual findings and contract interpretations, the Authority does not defer to an arbitrator's conclusions as to the legal effect of those findings and interpretations. See, e.g., NTEU, Chapter, 168, 55 FLRA 237, 241-42 (1999) (deferring to arbitrator's interpretation of parties' agreement and reviewing de novo the legal effect of applying the agreement, as interpreted by the arbitrator).

      In the present case, the Arbitrator found that the grievant's proposed suspension resulted from him asking for sick leave on a day when he "did not intend to report to work" and that "[t]he proposed suspension did not occur because of any more general pattern of sick leave abuse." Award at 5 (internal citations omitted). The Arbitrator concluded that the legal effect of this finding was that the grievant's due process rights had been violated. However, deferring to the Arbitrator's finding that the proposed suspension did not occur because of a pattern of sick leave abuse, the Authority reviewed the Arbitrator's legal conclusion de novo and concluded that there was not a due process violation and the Arbitrator's legal conclusion was contrary to law. Applying the legal standard set forth above, the Authority found that the grievant's due process rights were satisfied because: (1) the grievant was provided with written notice of the proposed suspension; (2) the Agency provided the grievant with the materials relied on by the Agency to propose the charges; and (3) the grievant was provided an opportunity to, and did, respond to the charges against him. Accordingly, consistent with precedent, we find that the Union's argument does not demonstrate extraordinary circumstances warranting review of the Authority's decision.

      The Union also asserts that the Authority erred in finding that the grievant's due process rights were satisfied pursuant to 5 U.S.C. § 7503(b) and 5 C.F.R. § 752.203 because he was "aware that his prior use of sick leave was part of the material relied on by the Agency in deciding to propose the suspension and in determining whether to sustain the charge." Motion for Reconsideration at 9 (emphasis omitted) (quoting Border Patrol, El Paso, 61 FLRA at 7 n.7). As set forth in Border Patrol, El Paso, it was undisputed that the Union received the July 14, 2000 memorandum in which the Assistant Patrol Agent in Charge outlined the grievant's use of sick leave and advised the Chief Patrol Agent that it was "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." Border Patrol, El Paso, 61 FLRA at 4, 7 n.7. Accordingly, the Union's claim does not establish extraordinary circumstances.

      Further, with respect to its argument that the Authority's decision violates Articles 14(H) and 21(A) of the parties' agreement, the Union asserts that the Authority has relieved the Agency of its contractual requirements to produce reasonable evidence of the grievant's prior sick leave abuse and to ensure that the employee is aware of derogatory material in his work folder. In our view, the Union's claims essentially set forth additional arguments as to why the Agency's actions were improper under the parties' agreement. In resolving requests for reconsideration, the Authority has refused to consider arguments that were not raised to the Authority in its review of an award upon a party's exceptions. See United States Dep't of Health & Human Servs., Food & Drug Admin., 60 FLRA 789, 791 (2005) and cases cited therein. Accordingly, as the Union's arguments concerning Article 14(H) and Article 21(A) reflect additional reasons why the Agency's actions against the grievant were improper, and as the Union did not raise these arguments before the Arbitrator, or in its opposition below, we do not consider them upon its motion for reconsideration. See id.

      With regard to the Union's claim that the decision is contrary to Authority precedent, we note that, as set forth in Border Patrol, El Paso, under Authority precedent, 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 [ v61 p396 ] Border Patrol, El Paso, 61 FLRA at 6. Applying this standard, the Authority found that the grievant's due process rights were satisfied because: (1) the grievant was provided with written notice of the proposed suspension; (2) the Agency provided the grievant with the materials relied on by the Agency to propose the charges; and (3) the grievant was provided an opportunity to, and did, respond to the charges against him. Accordingly, we find that the Union's claim, and the cases cited in support thereof, does not establish that the Authority's conclusion of law was erroneous. As such, we find that the Union's claim does not establish extraordinary circumstances warranting reconsideration.

      Finally, with regard to the Union's remaining claim that the Authority failed to cite 5 C.F.R. § 752.203(e), we find that this claim does not establish extraordinary circumstances warranting reconsideration. In this regard, consistent with precedent, the Authority found that, "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." Id. at 7. Accordingly, there was no need to address 5 C.F.R. § 752.203 further.

V.     Order

      The Union's motion for reconsideration is denied.



Footnote # 1 for 61 FLRA No. 72 - Authority's Decision

   Pursuant to § 2429.26 of the Authority's Regulations, the Agency requested leave to file an opposition to the Union's motion. We grant the Agency's request. See, e.g., United States Dep't of the Treasury, Internal Revenue Serv., Wash., D.C., 61 FLRA 352, 353 (2005).


Footnote # 2 for 61 FLRA No. 72 - Authority's Decision

   As relevant here, Article 32(D) provides:

An employee against whom disciplinary action is proposed is entitled to:
(1)     an advance written notice stating the specific reasons for the proposed action;
. . . .
(5)     a formal written decision, and the specific reason therefor, by an official other than the official who proposed the action. The deciding official will consider only the reasons specified in the notice and the material in the investigatory and disciplinary files, and shall consider any answer of the employee and his or her representative.

Agency's Exceptions in Border Patrol, El Paso, Attachment C at  46-47.


Footnote # 3 for 61 FLRA No. 72 - Authority's Decision

   Article 14( H) provides: