Immigration and Naturalization Service (Agency) and American Federation of Government Employees, AFL-CIO (Union) (Authority decision, March 24, 1982)

Final FLRA decision. The Authority resolved exceptions to an arbitral award. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116; this decision does not decide one.

Plain-English summary

An arbitrator set aside a Border Patrol agent’s ten-day suspension for off-duty misconduct after finding no proven effect on service efficiency. The Immigration and Naturalization Service argued that the arbitrator applied the wrong legal standard and had not addressed every charge. The Authority found no showing that the suspension was legally required or that the arbitrator ignored the other charges. It denied the agency’s exceptions.

Decision snapshot

• Authority: 5 U.S.C. § 7503(a), 5 U.S.C. § 7122(a).
• Outcome: The award setting aside the suspension was upheld.
• Key point: The agency did not show that the off-duty conduct legally required a suspension.

Full text (FLRA public release)

[ v08 p248 ]

08:0248(53)AR

The decision of the Authority follows:

8 FLRA No. 53

IMMIGRATION AND NATURALIZATION
SERVICE
Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Union

Case No. O-AR-177

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR BICKNELL J. SHOWERS FILED BY THE AGENCY UNDER SECTION 7122(A)
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. SEC.
7122(A)) (THE STATUTE) AND PART 2425 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR PART 2425). THE UNION FILED AN OPPOSITION.

ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER
CONCERNS THE SUSPENSION OF THE GRIEVANT, A BORDER PATROL AGENT, FOR 10
DAYS FOR OFF-DUTY MISCONDUCT. A GRIEVANCE WAS FILED AND ULTIMATELY
SUBMITTED TO ARBITRATION DISPUTING THE SUSPENSION.

THE PARTIES SUBMITTED TO THE ARBITRATOR THE FOLLOWING ISSUE:

DID THE SERVICE SUSPEND (THE GRIEVANT) FOR TEN DAYS FOR JUST AND
SUFFICIENT CAUSE AND ONLY

FOR SUCH REASONS WHICH PROMOTED THE EFFICIENCY OF THE SERVICE?
FINDING THAT "THERE (WAS) NO EVIDENCE THAT THE GRIEVANT'S CONDUCT . . .
CAUSED ANY ACTUAL PROBLEM FOR THE BORDER PATROL OR IN ANY WAY
INTERFERRED WITH HIS EFFECTIVENESS AS AN AGENT," THE ARBITRATOR
DETERMINED THAT THE IMPOSITION OF DISCIPLINE WAS NOT WARRANTED.
ACCORDINGLY, AS HIS AWARD, THE ARBITRATOR SUSTAINED THE GRIEVANCE AND
SET ASIDE THE SUSPENSION.

IN ITS FIRST EXCEPTION THE AGENCY PRINCIPALLY CONTENDS THAT THE AWARD
IS CONTRARY TO 5 U.S.C. SEC. 7503(A) WHICH PROVIDES THAT "AN EMPLOYEE
MAY BE SUSPENDED FOR 14 DAYS OR LESS FOR SUCH CAUSE AS WILL PROMOTE THE
EFFICIENCY OF THE SERVICE." IN SUPPORT THE AGENCY FIRST ACKNOWLEDGES
THAT WITH RESPECT TO OFF-DUTY MISCONDUCT A NEXUS MUST BE SHOWN BETWEEN
THE MISCONDUCT AND THE EFFICIENCY OF THE SERVICE. HOWEVER, THE AGENCY
MAINTAINS THAT THE NEXUS TEST USED BY THE ARBITRATOR WAS TOO STRINGENT
IN ITS BURDEN ON THE ACTIVITY AND THAT CONSEQUENTLY THE AWARD IS
CONTRARY TO SECTION 7503(A).

HOWEVER, NEITHER THE AGENCY'S ASSERTIONS CONCERNING THE PRECISE
ARTICULATION OF THE NEXUS THAT MUST BE SHOWN BY AN AGENCY BETWEEN AN
EMPLOYEE'S OFF-DUTY MISCONDUCT AND THE EFFICIENCY OF THE SERVICE NOR THE
AGENCY'S CITATIONS TO COURT CASES IN WHICH DETERMINATIONS THAT DISPUTED
DISCIPLINE PROMOTED THE EFFICIENCY OF THE SERVICE WERE NARROWLY REVIEWED
PROVIDE A BASIS FOR FINDING THE ARBITRATOR'S AWARD CONTRARY TO SECTION
7503(A). THE AGENCY HAS FAILED TO ESTABLISH THAT UNDER SECTION 7503(A)
THE ARBITRATOR WAS COMPELLED BY THE CIRCUMSTANCES OF THIS CASE TO DECIDE
AS A MATTER OF LAW THAT THE GRIEVANT'S SUSPENSION PROMOTED THE
EFFICIENCY OF THE SERVICE AND THAT THEREFORE HIS DETERMINATION TO THE
CONTRARY WAS DEFICIENT. ACCORDINGLY, IT HAS NOT BEEN SHOWN THAT THE
ARBITRATOR'S EVALUATION OF THE EVIDENCE TO FIND THAT THE ACTIVITY HAD
NOT DEMONSTRATED THAT THE GRIEVANT'S OFF-DUTY MISCONDUCT WARRANTED THE
DISCIPLINE IMPOSED IS IN ANY MANNER CONTRARY TO LAW. /1/

IN ITS OTHER THREE EXCEPTIONS THE AGENCY CONTENDS THAT, BECAUSE THE
ARBITRATOR ONLY EXPRESSLY CONSIDERED THE FIRST CHARGE AGAINST THE
GRIEVANT WHEN HIS SUSPENSION WAS BASED ON TWO ADDITIONAL CHARGES, THE
ARBITRATOR EXCEEDED HIS AUTHORITY BY NOT DECIDING ALL THE ISSUES
SUBMITTED AND THE AWARD DOES NOT DRAW ITS ESSENCE FROM THE COLLECTIVE
BARGAINING AGREEMENT AND IS INCOMPLETE.

HOWEVER, NONE OF THESE EXCEPTIONS PROVIDES A BASIS FOR FINDING THE
AWARD DEFICIENT. THERE IS NO REQUIREMENT IN LAW OR REGULATION WHICH
WOULD REQUIRE AN ARBITRATOR TO EXPRESSLY ADDRESS THE SECONDARY CHARGES
IN CASES SUCH AS THIS AND, WITH NO SUCH REQUIREMENT APPARENT UNDER THE
PARTIES' AGREEMENT, IT IS CLEAR THAT THE ARBITRATOR WAS NOT OBLIGATED TO
SPECIFICALLY DISCUSS THESE CHARGES. THE FACT THAT HIS OPINION
ACCOMPANYING THE AWARD DID NOT MENTION SUCH CHARGES DOES NOT ESTABLISH
THAT HE DID NOT RULE ON THEM. AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2327 AND DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
SOCIAL SECURITY ADMINISTRATION, 5 FLRA NO. 23 (1981) AND PRIVATE SECTOR
CASES CITED THEREIN. BECAUSE THE AGENCY'S ASSERTION THAT THE ARBITRATOR
DID NOT CONSIDER THE SECONDARY CHARGES IS BASED SOLELY ON THE ARBITRATOR
NOT EXPRESSLY ADDRESSING SUCH CHARGES IN HIS OPINION ACCOMPANYING THE
AWARD, THE AGENCY CONSEQUENTLY FAILS TO ESTABLISH THAT THE ARBITRATOR
EXCEEDED HIS AUTHORITY OR THAT THE AWARD DOES NOT DRAW ITS ESSENCE FROM
THE AGREEMENT OR IS INCOMPLETE. SEE ID.

FOR THE FOREGOING REASONS THE AGENCY'S EXCEPTIONS ARE DENIED.

ISSUED, WASHINGTON, D.C., MARCH 24, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES: ---------------

/1/ IN ITS FIRST EXCEPTION THE AGENCY ALSO ALLEGES THAT THE AWARD IS
CONTRARY TO ITS RIGHT UNDER SECTION 7106(A)(2)(A) OF THE STATUTE "TO
SUSPEND . . . OR TAKE OTHER DISCIPLINARY ACTION AGAINST . . .
EMPLOYEES." HOWEVER, ITS ARGUMENTS IN SUPPORT OF THIS ASSERTION ARE ALL
RELATED TO ITS CONTENTIONS REGARDING 5 U.S.C, SEC. 7503(A), DISCUSSED
ABOVE, AND THE AGENCY HAS NOT OTHERWISE ESTABLISHED THAT THE
ARBITRATOR'S AWARD RESOLVING THE ISSUE OF WHETHER THERE WAS JUST CAUSE
FOR THE SUSPENSION IS CONTRARY TO SECTION 7106(A)(2)(A). SEE PORTSMOUTH
NAVAL SHIPYARD AND FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, 5
FLRA NO. 28 (1981).