National Treasury Employees Union, Chapter 128 (Union) and United States Department of Homeland Security, United States Customs and Border Protection (Agency)

[ v62 p382 ]

62 FLRA No. 72

NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 128
(Union)

and

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

0-AR-4023

_____

DECISION

April 4, 2008

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope, Member

I.     Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator Margery Gootnick 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 exception.

      The Arbitrator determined that the Agency's decision to suspend the grievant, an auditor, for three days promoted the efficiency of the service because the grievant failed to honor just personal debts and having those debts was "incompatible with the fiduciary responsibilities of his position." Award at 9. For the reasons that follow, we deny the Union's exception.

II.      Background and Arbitrator's Award

      The grievant is an auditor in the Regulatory Audit Division of the Office of Strategic Trade. Award at 4. In this capacity, the grievant conducted unsupervised audits of airlines to determine "whether they have collected the proper use fees from passengers and whether they have remitted the user fees to the Government." Id.

      During a background investigation, the grievant was asked whether "he was over 180 days delinquent on any loan or financial obligation" to which he answered "no." Id. However after running a credit check, the Agency found a number of discrepancies that indicated the grievant's assertion was incorrect. Accordingly, upon further investigation, including a personal interview with the grievant in which the grievant disclosed that he had past debt problems, the Agency charged the grievant with "failure to pay just debts." Id.; Joint Exhibit (Ex) 3.

      After the parties were unable to agree upon a settlement to resolve this matter, the Agency imposed a three-day suspension but held it in abeyance pending the outcome of the grievance. The parties stipulated to the Arbitrator the following issue: "[d]oes the Agency's disciplinary action promote the efficiency of the service and if not, what is the appropriate remedy?" Award at 3.

      In resolving this issue, the Arbitrator determined that there was a "nexus" between the grievant's debts and his position and that those debts were inconsistent with the fiduciary responsibilities of his position. Id. at 9. Additionally, the Arbitrator made several findings that the grievant: (1) was "less than candid" in his response to his background investigation; (2) was required by regulation to "satisfy in good faith [his] obligation[] as [a] citizen[], including all just financial obligations," which he implicitly failed to do; (3) had the ability to pay his debts but implicitly chose not to; (4) failed to pay all of his debts; and, (5) based upon these issues, "potentially affected his supervisor's confidence in his judgment and in his ability to testify" along with his implicit ability to have contact with the public in executing his fiduciary duties as an auditor. Id. at 8, 9-10 (citing 5 C.F.R. § 2635.101(b)(12)). Accordingly, while the Arbitrator also noted mitigating evidence, she nonetheless found that the Agency was justified in suspending the grievant for three days because such suspension was appropriate and would promote the efficiency of the service. Id. at 11.

III.      Positions of the Parties

A.       Union's Exception

      The Union argues that the award is contrary to law. Specifically, the Union contends that in order for an agency to sustain an action based on misconduct, it must prove: (1)  "[t]hat the employee actually committed all the elements of the alleged misconduct; (2) [t]hat there is a sufficient nexus between the misconduct and the efficiency of the service to sustain the adverse action; and (3) [t]hat the particular penalty imposed had been appropriately chosen for the specific conduct involved and is based on a consideration of the factors relevant to promotion of service efficiency." Exception at 3 (citing Parsons v. United States Dep't of the Air Force, 707 F.2d 1406 (D.C. Cir. 1983); Douglas v. Veterans [ v62 p383 ] Administration, 5 MSPB 313 (1981)). The Union asserts that here the "element of [n]exus in the case of a charge of failure to pay just debts must be proven by a preponderance of evidence" because there is no legal presumption of nexus under these facts and that the Arbitrator's award fails to rely upon a preponderance of evidence in finding a nexus. Exception at 4, 5

      Specifically, the Union asserts that the Merit Systems Protection Board (MSPB) held that an agency could not presume nexus but must prove that an employee's failure to pay his debts will have a detrimental effect on his ability to perform his duties or on the agency's ability to perform its mission. The Union also notes that the MSPB rejected an argument in favor of presuming nexus in cases of failure to pay debts, holding that nexus could only be presumed where the conduct is shown to be egregious. Id. at 4 (citing Vilt v. United States Marshalls Service, Dep't of Justice, 16 MSPR 192 (1983). Additionally, the Union states that to the extent the Arbitrator relied upon evidence to establish a nexus, "the Agency failed to offer any evidence to support the nexus between debts owed and the efficiency of the service." Exception at 5. Accordingly, the Union argues that in the absence of a legal presumption of nexus or evidence to establish that an actual nexus exists, the award is contrary to law.

B.      Agency's Opposition

      The Agency notes that before misconduct can be proved for off-duty service, it must establish a nexus between the off-duty m