United States Department of Homeland Security, U.S. Citizenship and Immigration Services, San Francisco Asylum Office (Agency) and American Federation of Government Employees, Local 1616 (Union)


66 FLRA No. 130                                                                                                                                                                                     
LOCAL 1616
June 7, 2012
Before the Authority: Carol Waller Pope, Chairman, and
Thomas M. Beck and Ernest DuBester, Members
I.                    Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Stephen D. Owens filed by the Agency under § 7122(a) of the Federal Service Labor‑Management Relations Statute and part 2425 of the Authority’s Regulations. The Union filed an opposition to the Agency’s exceptions.
The Arbitrator determined that the Agency did not have just cause to suspend the grievant for seven days, and he mitigated the suspension to three days. For the following reasons, we deny the Agency’s exceptions.
II.                  Background and Arbitrator’s Award
The Agency suspended the grievant, an asylum officer, for seven days based on five specifications. Award at 1-3. The Union filed a grievance challenging the suspension. Id. at 3-4. The grievance was unresolved and submitted to arbitration, where the Arbitrator framed the issue as “[w]hether or not the seven working-days suspension issued to [the grievant] was for just cause?” Id. at 9.
As an initial matter, the Arbitrator determined that the Agency “ha[d] the burden of proving by a preponderance of the evidence that its action was warranted.” Id. In this connection, the Arbitrator stated that “there are several factors that can be applied when assessing just cause[] or[] ‘appropriate cause’ as stated     . . . in Section B of Article 29” of the parties’ agreement.[1] Id. at 10.
The Arbitrator denied the grievance as to two of the five specifications, but found that the Agency had failed to establish just cause to discipline the grievant for the following three specifications: (1) leaving the office late and triggering the alarm system; (2) failing to immediately print interview notes and place them in a particular file following an interview that she conducted with an asylum applicant; and (3) “failing to call up [her] first interview within [thirty] minutes of the scheduled interview time on [seventeen] out of [forty-nine] cases.” Id. at 1-3, 16.
As to the first specification, the Arbitrator found that “the discipline based on the [g]rievant’s activation of the alarm . . . is flawed because the [g]rievant was not properly forewarned of the consequences of her actions.” Id. at 11. With regard to the second specification, the Arbitrator determined that the evidence demonstrated that, on the day at issue, the grievant experienced a computer malfunction, which resulted in the partial loss of her notes. Id. at 13. The Arbitrator further determined that the Agency disciplined the grievant “based on a flawed and inadequate investigation” because it did not investigate the grievant’s claims concerning the computer malfunction. Id. at 14. With respect to the third specification, he determined that “the [g]rievant’s misconduct [was not] the sole cause of the interview problem.” Id. at 15. In this connection, the Arbitrator found that “the problem [was] a function not only of her inability to effectively prepare for the first interview, but also because of the interview start times specified by the Agency.” Id.
The Arbitrator found that these three specifications “deal[t] with performance issues for which discipline, under the terms of Article 22,[[2]] is not warranted.” Id. at 16. Accordingly, as relevant here, he reduced the penalty to a three-day suspension. Id.
III.               Positions of the Parties
A.                  Agency’s Exceptions
The Agency argues that the Arbitrator erred as a matter of law in finding that Article 22 of the parties’ agreement “prohibits management from charging ‘performance[-]based’ actions under [5 U.S.C.] Chapter 75” (Chapter 75).[3] Exceptions at 3. In this connection, the Agency contends that: (1) an agency can take a performance-based action under Chapter 75 – even when employee misconduct is not the sole cause of the problem – so long as the agency complies with relevant procedural requirements; and (2) there is no precedent holding that a bargaining-agreement provision concerning performance management, such as Article 22, precludes such action.   Id. at 3-4. The Agency also argues that the award fails to draw its essence from the parties’ agreement because there is no wording in “any [a]rticle [of the] [a]greement” that prohibits the Agency from taking performance-based actions under Chapter 75. Id. at 3.
B.                  Union’s Opposition
The Union maintains that the award is “lawful and draws its essence from” the parties’ agreement.” Opp’n at 4. In this connection, the Union contends that the Agency’s exceptions “misinterpret the Arbitrator’s [a]ward.” Id. Specifically, the Union argues that “[t]he Arbitrator clearly found that the Agency failed to prove any misconduct worthy of discipline for three of the five [specifications] brought by the Agency to support its seven-day suspension.” Id. at 4. The Union further argues that the Agency’s exceptions “represent mere disagreement” with the Arbitrator’s factual findings and “do not provide a basis for finding the award deficient.” Id. at 7.
IV.                Analysis and Conclusions
A.                  The award is not contrary to law.
When exceptions involve an award’s consistency with law, the Authority reviews any question of law raised by the exceptions and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing U.S. 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 U.S. Dep’t of Def., Dep’ts of the Army & the Air Force, Ala. Nat’l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator’s underlying factual findings. See id.
Where an arbitrator resolves a claim under a collective-bargaining agreement rather than a legal claim, “unless a specific burden of proof is required, an arbitrator may establish and apply whatever burden the arbitrator considers appropriate[.]” U.S. Dep’t of Veterans Affairs, VA Md. Healthcare Sys., 65 FLRA 619, 621 (2011) (VA Md.) (quoting U.S. GSA, Ne. & Caribbean Region, N.Y.C., N.Y., 60 FLRA 864, 866 (2005)) (internal quotation marks omitted). In addition, where an arbitrator is not required to apply a particular legal standard, alleged misapplications of that standard do not provide a basis for finding the arbitrator’s award deficient. E.g., Soc. Sec. Admin., 65 FLRA 286, 288 (2010) (SSA).
Here, the Arbitrator framed the issue as whether the Agency had “just cause” or “appropriate cause” to discipline the grievant as required by Article 29, Section B of the parties’ agreement. Award at 10. He did not set forth as an issue, or resolve, whether the suspension violated Chapter 75. Because the issue before the Arbitrator was a purely contractual claim, the Arbitrator was not required to apply a particular legal standard, and the Arbitrator’s alleged misapplication of Chapter 75 does not provide a basis for setting aside the award as contrary to law. See SSA, 65 FLRA at 288. Accordingly, we deny the Agency’s contrary-to-law exception. Cf. VA Md., 65 FLRA at 621-22 (denying contrary-to-law exceptions challenging legal standard used by arbitrator, where arbitrator resolved grievance unde