[ v42 p650 ]
42:0650(41)AR
The decision of the Authority follows:
42 FLRA No. 41
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Eric J. Schmertz filed by the Agency pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
The Agency suspended the grievant for 10 days without pay for allegedly: (1) misstating a fact to a supervisor and co-worker; (2) refusing to answer a supervisor's question; and (3) using insulting, abusive and obscene language when talking to a supervisor. The Arbitrator found that the Agency failed to show by clear and convincing evidence that the suspension was made for just and sufficient cause. The Arbitrator sustained the grievance, set aside the suspension, and ordered that the grievant be given backpay. For the following reasons, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The grievant is a Deportation Officer who was reassigned to perform Bond Officer duties for 1 day. While completing a worksheet on a bond for an alien being held in the Chula Vista detention center, the grievant had all of the information needed to entitle the alien to be released on bond, except the alien's date of birth. When the grievant was unable to obtain that information, he requested the secretary who was preparing the alien's bond worksheet to put her own date of birth on the form. The secretary refused.
The supervisor overheard the grievant request that the secretary use her own date of birth on the form. When the supervisor asked the grievant about that action, a dispute developed between the supervisor and the grievant. As a result, the grievant was charged with: (1) dereliction of duty; (2) misstatement of fact to a supervisor; (3) refusal to answer a supervisor's question; and (4) use of insulting, abusive and obscene language to a supervisor. The Agency investigated the incident and dismissed the charge of dereliction of duty. The Agency proposed that the grievant be suspended for 10 days without pay on the remaining charges.
The grievant grieved the suspension. The matter was not resolved and the grievance was submitted to arbitration. The parties stipulated the following issue before the Arbitrator: "Was the 10-day suspension of [the grievant] taken for just and sufficient cause in accordance with Article 31-H(1) of the negotiated agreement, and if not, what shall the remedy be?"(1) Award at 1.
The Arbitrator stated that the Agency "has the burden of establishing by clear and convincing evidence that there was just and sufficient cause for disciplining [the grievant]." Id. at 11. With respect to the charge that the grievant made a misstatement of fact to the supervisor and a co-worker, the Arbitrator found that the Agency "failed to establish by clear and convincing evidence that the conduct charged provides just and sufficient cause for disciplining [the grievant]." Id. at 13. The Arbitrator found "significant evidence of record that [the grievant], after having identified the aliens who were entitled to be released, acted in accordance with common office practice to accomplish their release expeditiously." Id.
With regard to the alleged misconduct of the grievant set forth in the third and fourth charges, the Arbitrator found that the parties presented completely different versions of the incident. As there was no corroboration of either side's version, the Arbitrator found that he was "constrained" to find that the Agency had "not sustained its burden of establishing by clear and convincing evidence that the words were spoken and that there was just and sufficient cause for disciplining the [grievant] on the basis of these last two charges." Id. at 13-14.
The Arbitrator set aside the grievant's 10-day suspension and ordered that the grievant be made whole as to any loss of money or rights and privileges that he suffered by virtue of the suspension.
III. Positions of the Parties
A. The Agency
The Agency contends that the award is contrary to 5 U.S.C.