American Federation of Government Employees, National Border Patrol Council, Local 2455 (Union) and United States, Department of Homeland Security, United States Customs and, Border Protection (Agency)

[ v62 p37 ]

62 FLRA No. 10

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
NATIONAL BORDER PATROL COUNCIL
LOCAL 2455
(Union)

and

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
UNITED STATES CUSTOMS AND
BORDER PROTECTION
(Agency)

0-AR-4031

_____

DECISION

March 22, 2007

_____

Before the Authority: Dale Cabaniss, Chairman and
Wayne C. Beyer, Member

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Rex H. Wiant 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 over the Agency's reassignment of the grievant to administrative duties for an extended period of time and withdrawal and revocation of his authority to carry a firearm during that period. For the reasons that follow, we deny the Union's exceptions.

II.      Background and Arbitrator's Award

      At the time of the events in dispute, the grievant was a senior border patrol agent with a duty station in Laredo, Texas. In January 2004, he was temporarily assigned to the Agency's training center in Charleston, South Carolina. According to the Arbitrator, the grievant was accompanied to South Carolina by a women with a history of mental illness. On February 22, 2004, the woman called local police and alleged that she had been assaulted by the grievant. The police responded, arrested the grievant, and charged him with domestic criminal violence. The police also took possession of his government-issued firearm and subsequently returned it to the Agency. The grievant's training center supervisor ordered the grievant to return to Laredo. Upon returning to Laredo, the grievant was placed on administrative duties, for which he received his regular pay but not the overtime and premium pay that border patrol agents normally receive, and his authority to carry a firearm was withdrawn. The matter of the grievant's arrest was referred by the Agency to its Office of Professional Responsibility. In June 2004, South Carolina officials dismissed the charge against the grievant and expunged his record. The grievant presented copies of the dismissal order to the Agency.

      When the Agency did not return the grievant to regular duty and restore his authority to carry a firearm, the grievant filed a grievance on July 29, 2004, claiming that his assignment to administrative duties and the withdrawal of authority to carry a firearm violated the parties' collective bargaining agreement and the negotiated firearms policy. The Agency denied the grievance and also formally revoked the grievant's authority to carry a firearm. In September 2004, the Office of Professional Responsibility interviewed the grievant. On May 25, 2005, without a report on, or resolution of, the matter by the Office of Professional Responsibility, the grievant was returned to regular duty and his authority to carry a firearm was restored. This did not resolve the grievance, and the grievance was submitted to arbitration.

      The parties agreed that the issues for resolution included whether the Agency violated Articles 4(H), 16(G), or 32(K) of the collective bargaining agreement [n1]  or the firearms policy. [n2]  The Arbitrator framed the merits issue as follows:

Did the Employer violate the collective bargaining agreement (specifically [Articles] 16G, 4H, 32K, or the negotiated Firearms Policy) when it assigned the [g]rievant to administrative duty while the Office of Professional [R]esponsibility investigated an incident that occurred in South Carolina on February 22, 2004?

Award at 2.

      The Union argued that the Agency violated Article 4(H) because the charge against the grievant had been [ v62 p38 ] dismissed and the record expunged. The Union argued that the Agency violated Article 16(G) by placing the grievant on administrative duties when administrative duties are not specified in the grievant's position description. The Union also argued that the Agency violated Article 32(K) by using the record of the unfounded charge against the grievant to reassign him to administrative duties. In addition, the Union argued that the Agency's withdrawal and revocation of the grievant's authority to carry a firearm was not in accordance with the requirements of the firearms policy.

      The Arbitrator denied the grievance. He found no violation of the firearms policy because the grievant's firearm was seized by the local South Carolina police and the grievant's authority to carry a firearm was restored when he returned to regular duty. He also found no violation of the collective bargaining agreement. He explained that the charge of domestic violence satisfied the nexus requirements of the agreement because the grievant was a law enforcement officer and the charge, as a felony, was a serious accusation. He also agreed with the Agency that the dismissal of the criminal charge did not preclude the Agency from further investigating the incident because this was a matter of employment law, and not criminal law. However, he was critical of the handling of the matter by the Office of Professional Responsibility, stating in the discussion accompanying his award that he would like to have the Office of Professional Responsibility reimburse the grievant for his lost pay, but that such action would exceed his authority.

III.      Positions of the Parties

A.      Union's Exceptions

      The Union contends that the award "fails to draw its essence from the collective bargaining agreement, is based on a nonfact and is contrary to law." Exceptions at 7.

      The Union argues that the Arbitrator's finding without explanation that the nexus requirements of the agreement were satisfied is totally unfounded and does not represent a plausible interpretation of Article 4(H) of the agreement. The Union further argues that the award fails to draw its essence from the agreement because the Arbitrator made no findings and provided no reasoned analysis in support of his rulings that Article 16(G) and 32(K) were not violated. The Union also argues that the Arbitrator's ruling that the firearms policy was not violated on the basis that the grievant's firearm was seized by the local South Carolina police does not represent a plausible interpretation of the policy.

      In addition, the Union argues that "[t]he Arbitrator's decision that he does not have the authority to award the grievant back pay is based on a nonfact." Id. at 9. The Union notes that it supported its position that the Arbitrator had jurisdiction over the Office of Professional Responsibility and claims that if the Arbitrator had understood the Union's arguments, he would have reached a different result.

      Under the heading "[t]he Arbitrator's decision that he does not have the authority to award the grievant back pay is based on a nonfact[,]" the Union concludes its exceptions as follows:

And the Union, in its post-hearing brief set forth detailed guidance as to his authority under the Back [P]ay Act and under FLRA case law. (See Union Brief at pgs. [sic] 18-23). In interpreting external law, the Arbitrator is required to defer to the decisions of competent administrative bodies. He failed to do so.

Id. at 9, 10.

B.      Agency's Opposition

      The Agency contends that the Union has not established that the award is deficient.

      The Agency asserts that the award draws its essence from Article 4(H) because the Arbitrator properly evaluated the connection between the grievant's arrest and his position as a border patrol agent. In addition, the Agency argues that the dismissal of the criminal charge against the grievant did not negate the nexus between the grievant's conduct and his position.

      According to the Agency, the award draws its essence from Article 16(G) even though the Arbitrator does not specifically cite Article 16(G). The Agency claims that the Arbitrator reasonably found no violation of Article 16(G) on the basis of his finding that the placement of the grievant on administrative duties was reasonable because of the nexus between the alleged conduct and the grievant's position.

      The Agency asserts that the award draws its essence from Article 32(K) because the Union agreed at the hearing that there was no violation.

      In addition, the Agency argues that the award draws its essence from the firearms policy. The Agency claims that based on the entire record, the Arbitrator reasonably determined that the Agency had the authority to "restrict/withdraw and /or revoke Grievant's right to [ v62 p39 ] carry a weapon, as a result of Grievant's arrest and subsequent investigation." Opposition at 15.

      Finally, the Agency asserts that the Arbitrator's determination that he was not authorized to award backpay is not deficient. The Agency argues that the Union has not demonstrated that the award is based on a nonfact. The Agency also argues that the Union failed to prove the elements that would have authorized backpay under the Back Pay Act. The Agency asserts that contrary to the Union's claim, the Back Pay Act does not authorize backpay because there was no determination that the assignment of administrative duties was an unjustified or unwarranted personnel action, and the Union has not explained how the Arbitrator could have awarded backpay when he determined that the Agency did not violate the collective bargaining agreement or the firearms policy.

IV.      Analysis and Conclusions

A.      The award does not fail to draw its essence from the collective bargaining agreement or the firearms policy.

      In resolving exceptions that challenge an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential "essence standard of review that the federal courts apply in reviewing awards in the private sector." AFGE, Nat'l Council of Field Labor Locals, Local 2391, 59 FLRA 547, 549 (2003). The standard is deferential because it is the arbitrator's construction of the agreement for which the parties bargained. Id. To demonstrate that an award fails to draw its essence from a collective bargaining agreement, the appealing party must show that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement so as to manifest an infidelity to the obligation of the arbitrator; (2) does not represent a plausible interpretation of the agreement; (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. Id.

      As to the Arbitrator's rulings that the Agency did not violate Article 16(G) and Article 32(K), the Union argues that the award fails to draw its essence from the agreement because the Arbitrator made no findings and provided no reasoned analysis in support of his rulings. However, arbitrators are not obligated to provide a rationale for their rulings unless required to do so by contract, submission of the parties, or law. See, e.g., United States Dep't of Def., Def. Contract Mgmt. Agency, 59 FLRA 396, 403 (2003). The Union has not identified any such requirements on the Arbitrator in resolving the submitted grievance. Consequently, the fact that the Arbitrator ruled that the Agency did not violate Article 16(G) or Article 32(K) without setting forth findings or rationale more specific than he did provides no basis for finding that the award fails to draw its essence from the agreement. See, e.g., United States Dep't of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, 55 FLRA 152, 155-56 (1999).

      In addition, the Union argues that the Arbitrator's finding without explanation that the nexus requirements of the agreement were satisfied is totally unfounded and does not represent a plausible interpretation of Article 4(H). We reject the Union's claim that the Arbitrator's finding was without explanation. The Arbitrator specifically explained that the charge of domestic violence satisfied the nexus requirements because the grievant was a law enforcement officer and the charge, as a felony, was a serious accusation. The Arbitrator also explained that the dismissal of the criminal charge did not preclude the Agency from further investigating the incident because this was a matter of employment law, and not criminal law. This explanation is fully consistent with the court and Merit Systems Protection Board cases cited to the Arbitrator by the Agency. Consequently, the Union has not established that the Arbitrator's ruling that the Agency did not violate Article 4(H) is unfounded or implausible.

      As to the firearms policy, the Union argues that the Arbitrator's ruling that the policy was not violated on the basis that the grievant's firearm was seized by the local police is an implausible interpretation of the policy. Section 6(F) of the firearms policy provides that the authority of an officer to carry a firearm may be withdrawn or restricted "when the withdrawal or restriction is in the best interests of the [Agency][,]" and that when such authority is withdrawn or restricted, "supervisors will ensure that the officer is not assigned duties that normally require the carrying of a handgun." INS Firearms Policy (February 19, 2003), Arbitration Joint Exhibit 10, at 15-16. The Agency argued to the Arbitrator that after the grievant's firearm was returned by the local police to the Agency as custodian, the Agency's withdrawal and restriction on the grievant's authority to carry a firearm was in the best interests of the Agency because of the grievant's arrest and subsequent investigation, and that the Agency was required to place the grievant on administrative duties.

      Although the Arbitrator did not expressly address the provisions of Section 6(F) in ruling that the Agency's assignment of the grievant to administrative duties did not violate the firearms policy, this fact provides no basis for finding that the ruling fails to draw its [ v62 p40 ] essence from the firearms policy. With the Arbitrator having specifically determined that the grievant's assignment to administrative duties was warranted because of the seriousness of the criminal charge and his status as a law enforcement officer, the Union fails to establish that the Arbitrator's implicit findings under the firearms policy that the restrictions on the grievant's authority to carry a firearm were in the best interests of the Agency and that the Agency was required to place the grievant on administrative duties does not represent a plausible interpretation of the policy.

      Accordingly, we deny this exception.

B.     The Arbitrator's determination that he was not authorized to award backpay is not based on a nonfact.

      To establish that an award is based on a nonfact, the appealing party must establish that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See, e.g., NFFE Local 561, 52 FLRA 207, 210 (1996). However, when the determination alleged to constitute a nonfact is based on an interpretation of law, the determination cannot be challenged as a nonfact. Id. As indicated by the Back Pay Act discussion, the Arbitrator's determination that an award of backpay was not authorized constitutes a legal conclusion, not a factual determination, and therefore, the determination cannot be challenged as a nonfact. Consequently, there is no basis for finding the award deficient as based on a nonfact, and we deny this exception.

C.      The Union's remaining claim.

      Under the heading for its nonfact exception, the Union notes that in its post-hearing brief to the Arbitrator, it addressed Authority decisions that it claimed supported the Arbitrator's authority to award backpay to the grievant. Exceptions at 10 (citing its post-hearing brief at 18-23). In its exceptions to the award, the Union claims that in interpreting the Back Pay Act, the Arbitrator was required to follow those decisions, but failed to do so. Id. It is not clear whether this argument is in support of the nonfact exception or is a separate exception claiming that the failure to award backpay is contrary to the Back Pay Act. In its opposition, the Agency does not specifically identify this claim as a separate exception, but asserts in detail that contrary to the Union's claim, the Back Pay Act did not authorize backpay because there was no determination that the assignment of administrative duties to the grievant was an unjustified or unwarranted personnel action.

      We will construe the Union's claim as an exception contending that the failure to award backpay is contrary to the Back Pay Act. The gist of the Union's claim seems to be that the Arbitrator failed to follow the Back Pay Act, and the Agency has fully responded to this claim in its opposition.

      When an exception involves the award's consistency with law, the Authority reviews de novo any question of law raised by the award and the exception. E.g., NTEU Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See, e.g., NFFE Local 1437, 53 FLRA 1703, 1710 (1998).

      The Arbitrator refused to grant the Union its requested remedy of backpay. In doing so, he stated that he would have liked to have the Office of Professional Responsibility reimburse the grievant for his lost pay, but that such action would exceed his authority. The Union contends that the Arbitrator erroneously viewed the actions of the Office of Professional Responsibility to be beyond his authority to remedy under the Back Pay Act. For the reasons that follow, we conclude that the refusal to award backpay is not contrary to the Back Pay Act.

      The Authority has repeatedly acknowledged the standards of the Back Pay Act that must be met in order for arbitrators to be authorized to award grievants backpay. An award of backpay is authorized under the Back Pay Act only when an arbitrator finds both of the following: (1) the grievant was affected by an unjustified or unwarranted personnel action; and (2) the unjustified or unwarranted personnel action resulted in a loss of pay, allowances, or differentials. See, e.g., Nat'l Ass'n of Air Traffic Control Specialists, NAGE, SEIU, 61 FLRA 558, 559 (2006). Since the Arbitrator specifically ruled that the Agency's actions did not violate the agreement or the firearms policy, there was no unjustified or unwarranted personnel action within the meaning of the Back Pay Act. Consequently, the Arbitrator's disputed legal conclusion that he was not authorized to award the grievant backpay to be paid by the Office of Professional Responsibility is fully consistent with the standards of the Back Pay Act. Without addressing the accuracy of the Arbitrator's statement as a general rule on the authority of arbitrators, it is clear that in the circumstances of this case, an award of backpay was not authorized by the Back Pay Act and accordingly, the Arbitrator refusal to award backpay is not deficient. Cf. NTEU Chapter 98, 60 FLRA 448 (2004) (Chairman Cabaniss dissenting as to other matters) (without resolving the extent of the discretion of arbitrators to deny [ v62 p41 ] backpay as an appropriate remedy, the Authority concluded that the denial of an award of backpay in this case was not contrary to the Back Pay Act because the arbitrator found no violation of the collective bargaining agreement).

      Accordingly, we deny this exception.

V.      Decision

      The Union's exceptions are denied.


Appendix

     Article 4(H) of the collective bargaining agreement pertinently provides in relevant part:

The Service and Union agree that the conduct of employees while off duty shall result in action concerning the employee only when there is a nexus between that conduct and the employee's official position.

Exceptions, Exhibit 4. Article 16(G) of the collective bargaining agreement provides:

The parties agree that, except where the Agency would be impeded in carrying out its overall law enforcement mission, duties not specified in an employee's position description, or reasonably related thereto, will be avoided unless temporarily required by the needs of the Agency.

Id. Article 32(K) of the collective bargaining agreement pertinently in relevant part: "No record of a complaint, determined to be unfounded, will be placed in the employee's Official Personnel File." Id.

     Section 6 of the INS Firearms Policy (February 19, 2003) pertinently provides in relevant part:

F.      The authority of either a single officer or a group of officers to carry a firearm during duty and/or non-duty hours may be withdrawn or restricted by the Authorizing Official when the withdrawal or restriction is in the best interests of the Service and/or the officer(s). . . . In all cases where the authority of an officer to carry a firearm while in the performance of duty is withdrawn or restricted, supervisors will ensure that the officer is not assigned to duties that normally require the carrying of a handgun.

Arbitration Joint Exhibit 10