[ v45 p1164 ]
45:1164(116)AR
The decision of the Authority follows:
45 FLRA No. 116
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 R. Charles Bocken filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.
The grievant filed a grievance over his suspension for 5 days for opening a casket contrary to Agency rules. The Arbitrator denied the grievance.
We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant was suspended for 5 days for opening a casket during an interment operation in violation of Agency rules. The grievant filed a grievance over the suspension. The grievance was not resolved and was submitted to arbitration on the issues of whether the Agency's failure to disclose the identity of an informant in this case deprived the grievant of due process and whether the suspension was for just cause and the penalty was appropriate.
Before the Arbitrator, the Union argued that the grievance should be sustained because the Agency had denied the grievant constitutional due process by failing to reveal the name of the witness who informed the Agency that the grievant had opened the casket prior to burial. The Union also argued that the grievant did not have notice that opening a casket was prohibited by Agency rules. In addition, the Union argued that the penalty was excessive. The Agency admitted before the Arbitrator that it had refused to reveal the name of the informing witness. However, the Agency claimed that the grievant was afforded due process, particularly in view of his admission during the investigation that he had opened the casket. The Agency maintained that the grievant was adequately informed of the reason for the suspension and was provided with an opportunity to respond to the charge. The Agency also claimed that as an employee of the Agency for almost 19 years, the grievant knew or should have known of the prohibition against opening caskets during burials.
The Arbitrator rejected the Union's contention that the Agency had denied the grievant due process during the disciplinary proceedings before the Agency. The Arbitrator noted that the Agency admitted that it had refused to disclose the name of the person who had informed the Agency that the grievant had opened the casket. The Arbitrator further noted that the reason the Agency refused to disclose the informant's identity was because the informant was fearful of what the informant believed was the grievant's violent nature. The Arbitrator found that notwithstanding the Agency's refusal to disclose the name of the informant, the grievant was informed in detail of the reasons for the disciplinary action and was given an opportunity to reply to the allegation and to present matters in his own behalf. Moreover, the Arbitrator stated that the disclosure of the name of the informant "would seem to be unnecessary" "inasmuch as the Grievant had admitted to opening the casket[.]" Award at 6. Accordingly, the Arbitrator ruled that the Agency had afforded the grievant due process at the time the Agency imposed the suspension.
Furthermore, the Arbitrator ruled that even if there were defects in the process provided prior to arbitration, the defects were cured at the arbitration hearing. The Arbitrator found that all the requirements of due process were satisfied because at arbitration the grievant was provided an opportunity to cross-examine witnesses against him and to present witnesses and evidence in his own behalf. The Arbitrator noted that by agreement with the grievant and his attorney, the informant testified by telephone and was cross-examined by the grievant's attorney.
On the basis of the evidence and testimony presented, the Arbitrator determined that the Agency had established the alleged misconduct of the grievant. The Arbitrator noted that the informant had testified that he had observed the grievant open the casket as alleged and that two management witnesses had testified that the grievant had admitted during the investigation that he had opened the casket. The Arbitrator also noted that at the arbitration hearing, the grievant never denied opening the casket. The Arbitrator found that, instead, the grievant's defense "seemed to be that he was unaware of the prohibition against opening caskets[,]" and that he had opened the casket to determine the head-end of the casket. Id. at 8.
The Arbitrator rejected the defense and the Union's contention that the grievant did not have notice that opening a casket was prohibited by Agency rules. The Arbitrator found that the Agency "presented convincing evidence that employees of the [Agency] were aware of the fact that they were not to open caskets." Id. at 5. The Arbitrator noted that all of the Agency's witnesses testified to this fact and that the grievant had signed an acknowledgement that he was aware of the procedure for labeling the head-end of caskets. Accordingly, the Arbitrator rejected the grievant's justification that he had opened the casket to confirm the head-end.
On the issue of the appropriateness of the penalty, the Arbitrator determined that "no evidence was introduced to indicate that such a suspension was unauthorized by the [collective bargaining agreement], inconsistent with past practice, or clearly excessive under the circumstances." Id. at 8. Therefore, the Arbitrator upheld the penalty imposed.
Accordingly, as the award, the Arbitrator denied the grievance.
III. First Exception
A. Positions of the Parties
The Union contends that the award is contrary to law because the Agency rule on which the Agency based the grievant's suspension does not apply to the alleged misconduct of the grievant. The Union notes that the grievant was suspended for violating Agency regulation M-40-2 (Administration, Operation and Maintenance of National Cemeteries), Chapter 6, Paragraph 6.02 (Viewing of Remains in National Cemeteries), which provides, as follows:
a. Facilities for viewing remains are not provided in national cemeteries pursuant to VA policy.
b. Under no circumstances will the Cemetery Director, or the designated representative, permit a casket to be opened after the hearse bearing a closed casket has entered the cemetery.
The Union asserts that this regulation involves the relationship between private parties and Agency representatives concerning the viewing of remains in national cemeteries and in that context prohibits open casket viewing of the deceased. The Union claims that the rule does not apply to the situation involving the grievant and cannot provide a basis for suspending the grievant. The Union argues that because this rule is inapplicable and because the Agency failed to cite any other rule or policy that applied to the alleged conduct of the grievant, the suspension could not legally have been sustained and the Arbitrator's award is, therefore, deficient.
The Agency contends that the Union's argument is frivolous.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award is contrary to law.
The grievant was suspended for 5 days for violating M-40-2, Chapter 6, Paragraph 6.02(b), which the Agency applies to prohibit the opening of a casket for any reason in the cemetery. Before the Arbitrator, the Union contended that the grievant did not have notice that opening a casket was prohibited by Agency rules. The Arbitrator rejected the Union's contention. The Arbitrator specifically determined that the Agency "presented convincing evidence that employees of the [Agency] were aware of the fact that they were not to open caskets." Id. at 5.
In our view, the Union fails to establish otherwise. We find that the Union fails to demonstrate that the Agency's application of M-40-2 to prohibit Agency employees from opening a casket during a burial is unreasonable. Furthermore, in view of the Arbitrator's finding that the common understanding of Agency employees is that Agency rules prohibit Agency employees from opening a casket during a burial, we conclude that the Union provides no basis for finding that the grievant should not have known of the prohibition. We find that the Union's exception constitutes nothing more than an attempt to relitigate this issue before the Authority and disagreement with the Arbitrator's findings of fact and his evaluation of the evidence and testimony. Consequently, the exception provides no basis for finding the award deficient. See, for example, U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base and American Federation of Government Employees, Local 1592, 40 FLRA 1243, 1248 (1991) (Ogden ALC).
Accordingly, we will deny the exception.
IV. Second Exception
A. Positions of the Parties
1. The Union
The Union contends that the award is deficient because the Agency failed to advise the grievant that he had a right to remain silent during pre-disciplinary discussions with Agency officials.
The Union notes that under Article XX, Section 3 of the collective bargaining agreement, prior to proposing a formal disciplinary action, management officials will discuss the matter with the employee involved. That contractual provision provides that during this discussion, "[t]he employee will be advised of his/her right to speak or remain silent during the discussion . . . ." The Union claims that the Agency has failed to show that the grievant was advised of his contractual right to remain silent during the discussions with management officials.
2. The Agency
The Agency argues that this issue has been raised for the first time in the Union's exceptions to the award. The Agency asserts that, furthermore, the grievant did not have a right to remain silent pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), because there was never a custodial interrogation of the grievant by law enforcement officers.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award is deficient.
The Agency claims that the issue of whether the grievant was advised of his right to remain silent as required by Article XX, Section 3 of the parties' collective bargaining agreement has been raised by the Union for the first time in its exceptions to the award, and our review of the record in this case supports the Agency's claim. Under section 2429.5 of the Authority's Rules and Regulations, arbitration awards are not subject to review on the basis of any issue that could have been, but was not presented to the arbitrator. U.S. Department of Defense Dependents Schools, Alexandria, Virginia and Overseas Education Association, 41 FLRA 982, 999 (1991); U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and Washington Plate Printers Union, Local No. 2, International Plate Printers, Die Stampers and Engravers, 41 FLRA 860, 865 (1991).
Accordingly, we will deny the exception.
V. Third Exception
A. Positions of the Parties
The Union contends that the award is contrary to section 7114(b)(4) of the Statute.
The Union maintains that the identity of the informing witness was necessary and relevant to the Union's duty to represent the grievant during the grievance proceedings and that the Union "made the appropriate requests." Exceptions at 4. The Union notes that, nevertheless, the Agency refused to provide the information and that the Arbitrator found that the refusal was not prejudicial because other evidence sustained the imposition of discipline. The Union asserts that the Arbitrator erred in finding that the Agency's refusal was not prejudicial.
The Union argues that the Agency's refusal concerned the substantive matter of information necessary for the Union to make an informed judgment of whether to pursue arbitration of the grievance, and, therefore, the refusal was not subject to a harmless-error analysis, which, according to the Union, applies only to procedural matters. The Union also argues that the Arbitrator erred in finding that other evidence supported imposition of the suspension. The Union maintains that the grievant admitted only to opening the latch of the casket and not the casket itself, and that the Arbitrator acknowledged that the grievant subsequently denied the misconduct. The Union, therefore, claims that the testimony of the informing witness was essential to the issue of whether the suspension was warranted and that the Union was entitled to be informed of the identity of the informing witness as a matter of law under section 7114(b)(4).
The Agency does not address this exception.
B. Analysis and Conclusions
The Union contends that the award is deficient because the Union was entitled to be informed of the identity of the informant under section 7114(b)(4) of the Statute, and the Agency failed to provide the information. We do not find the award to be deficient on this basis.
The Arbitrator identified the issues presented as whether the grievant was denied constitutional due process by the Agency's refusal to disclose the identity of the informant and whether the grievant was disciplined for just cause and the penalty was appropriate. The Arbitrator determined that the Agency afforded the grievant due process and that the suspension was for just cause and the penalty was appropriate. Although the Union clearly argued to the Arbitrator that the failure to provide the informant's identity deprived the grievant of constitutional due process, there is no indication in the record before us that the Union argued to the Arbitrator that the failure to provide that information violated section 7114(b)(4) of the Statute.
As we noted with respect to the previous exception, under section 2429.5 of the Authority's Rules and Regulations, arbitration awards are not subject to review on the basis of any issue that could have been, but was not presented to the arbitrator. As there is no indication that the Union argued to the Arbitrator that the failure to provide the informant's identity violated section 7114(b)(4), no basis is provided for finding that the award is contrary to that section of the Statute.
Furthermore, to the extent that the Union is arguing that the award is deficient because the Arbitrator erred in finding that the Union was not prejudiced by the Agency's refusal to disclose the identity of the informant and that other evidence supported the suspension, the Union's arguments constitute nothing more than disagreement with the Arbitrator's findings and conclusions and his evaluation of the evidence and testimony. Consequently, the arguments provide no basis for finding the award deficient. See Ogden ALC, 40 FLRA at 1248.
Accordingly, we will deny the exception.
VI. Fourth Exception
A. Positions of the Parties
The Union contends that the award is deficient because, contrary to the finding of the Arbitrator, the 5-day suspension was not a reasonable penalty. The Union further contends that the Arbitrator erred by placing the burden on the Union to prove that the penalty was unauthorized by the agreement, inconsistent with past practice, or clearly excessive under the circumstances. The Union argues that the Agency bears the burden of proof because "it is in a better position to do so." Exceptions at 9. The Union also argues that the Agency bears the burden of proof on appropriateness of the penalty because Article XX, Section 4 of the agreement requires that the Agency's final disciplinary action "will be reasonable."
The Agency contends that the Arbitrator properly found that the penalty was appropriate.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award is deficient.
We have repeatedly held that unless a specified standard of proof is required, arbitrators have the authority to establish whatever standard they consider appropriate, and we will not find the award deficient on this basis. For example, U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, Local 3615, 39 FLRA 407, 412 (1991) (Office of Hearings and Appeals); U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local 39, 36 FLRA 217, 222 (1990) (Naval Aviation Depot). Furthermore, unless otherwise provided, establishing the standard encompasses specifying which party has the burden of proof under the established standard. See Office of Hearings and Appeals, 39 FLRA at 412; Navy Aviation Depot, 36 FLRA at 222.
In this case, the Union fails to demonstrate that law, governing regulation, or the collective bargaining agreement specifies that the Agency has the burden of proof on the issue of the appropriateness of the penalty in a case of a suspension of 14 days or less covered by 5 U.S.C. chapter 75, subchapter I. Clearly, neither subchapter I nor 5 C.F.R. part 752, subpart A specifies the standard of proof or the party bearing the burden of proof on the issue of the penalty. Moreover, there is no statutory provision corresponding to 5 U.S.C. § 7701, which specifies that the agency bears the burden of proof by a preponderance of the evidence on the penalty issue in cases of adverse actions covered by 5 U.S.C. chapter 75, subchapter II. See U.S. Department of Justice, Immigration and Naturalization Service, New York District Office and American Federation of Government Employees, Immigration and Naturalization Service Council, Local 1917, 42 FLRA 650, 656 (1991). In addition, we are not persuaded that Article XX, Section 4, merely by requiring reasonableness on the part of the Agency, specifies that the Agency bears the burden of proof on the issue of appropriateness of the penalty when a disciplinary action is submitted to arbitration. Consequently, the Union's contention that the Arbitrator erred by placing the burden on the Union to prove that the penalty was inappropriate provides no basis for finding the award deficient. See Office of Hearings and Appeals, 39 FLRA at 412-13; Navy Aviation Depot, 36 FLRA at 222.
We also find that the Union's contention that, contrary to the finding of the Arbitrator, the penalty was not reasonable fails to establish that the award is deficient. The Union's contention constitutes nothing more than disagreement with the Arbitrator's finding and conclusion on the issue of the appropriateness of the penalty and provides no basis for finding the award deficient. See U.S. Department of Justice, Immigration and Naturalization Service, Jacksonville, Florida and American Federation of Government Employees, National Border Patrol Council Local 3725, 36 FLRA 928, 934 (1990) (Authority reconfirmed that it is for the arbitrator to determine whether a disputed disciplinary action was warranted and, if so, whether the penalty assessed was reasonable).
Accordingly, we will deny the exception.
VII. Fifth Exception
A. Positions of the Parties
1. The Union
The Union contends that the suspension could not be sustained because the Agency never disclosed the identity of the informant and that, therefore, the award is deficient. The Union argues that the failure to disclose the informant's identity denied the grievant the process due him under the Supreme Court's decision in Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) (Loudermill), and under 5 C.F.R. § 752.404 and the parties' collective bargaining agreement.
The Union asserts that suspensions of nonprobationary, competitive service Federal employees for 14 days or less invoke constitutional due process protections. In support of this assertion, the Union cites the decision in Goss v. Lopez, 419 U.S. 565 (1975) (Goss) and Click v. Board of Police Commissioners, 609 F. Supp. 1199 (W.D.Mo. 1985) (Click). The Union maintains that under Loudermill constitutional due process includes at a minimum: notice, an explanation of the evidence, and an opportunity to be heard. More specifically, the Union argues that before an employee can be suspended, constitutional due process requires, as a necessary component of the explanation of the agency's evidence, the disclosure of the names of witnesses who have made allegations against the employee. In support of this argument, the Union cites the decisions in Riggins v. Board of Regents, 790 F.2d 707 (8th Cir. 1986) and Wells v. Dallas Independent School District, 793 F.2d 679 (5th Cir. 1986).
In addition, the Union argues that the Arbitrator erred "by declaring that even assuming that a procedural defect occurred by the Agency's reluctance to release the informer's name, that defect was harmless insomuch as the Grievant 'had admitted to opening the casket' and that the Grievant was afforded the full opportunity to cross-examine the Agency's witnesses at the post-discipline hearing." Exceptions at 6. The Union claims that the Arbitrator ignored the mandatory nature of the constitutional due process that must be afforded prior to the imposition of discipline regardless of whether adequate post-discipline procedures exist. The Union further claims that in any event, the constitutional violations persisted because the identity of the informant was not disclosed even at the arbitration hearing.
The Union similarly maintains that, under 5 C.F.R. § 752.404(b)(1),1/ before an employee can be suspended the employee is entitled to review the material that is relied on to support the proposed suspension. The Union claims that under section 752.404, the grievant was entitled to be informed of the name of the person who had made the allegation against him.
The Union further claims that the Agency violated the collective bargaining agreement by not disclosing the identity of the informant. The Union notes that under Article XX, Section 3, an employee who is the subject of a proposed disciplinary action "will be advised of known facts concerning the matter giving rise to the consideration of the disciplinary action." The Union asserts that the identity of the informant was part of the facts known to the Agency and that, consequently, the grievant should have been advised of the name of the informant.
2. The Agency
The Agency contends that the grievant was afforded due process. The Agency maintains that the right to confront witnesses is not absolute under 5 U.S.C. chapter 75 and that, consequently, due process was satisfied when the informant testified at the hearing subject to cross-examination by the Union's attorney.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award is deficient.
1. Constitutional Due Process
In resolving the Union's claim that the Agency denied the grievant the process that was due him under Loudermill, we must determine: (1) whether the 5-day suspension deprived the grievant of a property interest that is protected by the Constitution; and (2) if so, whether the process by which the suspension was imposed was constitutionally adequate. Loudermill, 470 U.S. at 538; Board of Regents v. Roth, 408 U.S. 564, 576-78 (1972) (Roth).
As the Court noted in Loudermill, "[p]roperty interests are not created by the Constitution, 'they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as . . . law . . . .'" Loudermill, 470 U.S. at 538 (quoting Roth, 408 U.S. at 577). In Arnett v. Kennedy, 416 U.S. 134 (1974) (Arnett), the Supreme Court held that under law and executive order, nonprobationary, competitive service and preference-eligible, excepted service Federal employees were guaranteed continued employment absent such cause as will promote the efficiency of the service and that, consequently, such employees had a legitimate claim of entitlement that constituted a property interest under the Fifth Amendment. In Stephen v. Department of the Air Force, 47 MSPR 672, 681 (1991) (Stephen), the Merit Systems Protection Board held that Federal employees have a constitutionally protected property interest in their employment and have a constitutional right to due process under Loudermill in actions covered by 5 U.S.C. §§ 7511-7513.
Similar to section 7513, section 7503 provides that nonprobationary, competitive service Federal employees may not be suspended for 14 days or less except for such cause as will promote the efficiency of the service. Because such employees cannot be suspended for 14 days or less absent cause, we find in agreement with the Union that such employees have a constitutionally protected property interest in their employment without such suspensions. See Arnett; Stephen; see also Gillard v. Norris, 857 F.2d 1095 (6th Cir. 1988) (Gillard) (because the employee was a state civil servant who could not be removed or demoted on the basis of a nonmerit factor, the employee had a constitutionally protected property interest in his continued employment); Garraghty v. Jordan, 830 F.2d 1295 (4th Cir. 1987) (Garraghty) (because the employee was a state civil servant who could be removed or suspended only for cause, the employee had a constitutionally protected property interest in his continued employment). Likewise, because the grievant had a property interest in his employment, we find in agreement with the Union that the Agency could not deprive him of that interest by suspending him without due process of law.
"[O]nce it is determined that the Due Process Clause applies, 'the question remains what process is due.'" Loudermill, 470 U.S. at 541 (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). However, the very nature of due process precludes any notion of "inflexible procedures universally applicable" to every situation. Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961).
In Loudermill, a tenured public employee was removed and under applicable state law was entitled to a post-removal administrative hearing to contest the action. The Court determined that before public employees with a property interest in their continued employment can be removed, due process requires, at a minimum, that they be given notice of the charges against them and "some kind of a hearing . . . ." Loudermill, 470 U.S. at 542 (quoting Roth, 408 U.S. at 569-70). More specifically, the Court held that prior to removal, "the tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." Id. at 546.
The Court arrived at these requirements by balancing the competing interests of: (1) the employee in retaining employment; (2) the government in the expeditious removal of unsatisfactory employees and the avoidance of administrative burdens; and (3) the risk of erroneous removal. Id. at 542-43. However, the Court advised that "[t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings." Id. at 545 (quoting Boddie v. Connecticut, 401 U.S. 371, 378 (1971)).
Earlier, in Goss, 419 U.S. 565, the Court had addressed the procedural due process requirements when a student is suspended from school. The Court concluded that prior to suspension, due process requires "that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story." Goss, 419 U.S. at 581. The Court advised:
There need be no delay between the time "notice" is given and the time of the hearing. In the great majority of cases the disciplinarian may informally discuss the alleged misconduct with the student minutes after it has occurred. We hold only that, in being given an opportunity to explain his version of the facts at this discussion, the student first be told what he is accused of doing and what the basis of the accusation is.
Id. at 582. In balancing the competing interests, the Court found that, despite the student's interest in not being unfairly excluded from the educational process, "further formalizing the suspension process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool but also destroy its effectiveness as part of the teaching process." Id. at 583.
Courts have used these two cases as benchmarks of constitutional due process in determining what process is due for short-term suspensions. In Garraghty, 830 F.2d 1295, and Gillard, 857 F.2d 1095, public employees were suspended for 5 days and 3 days, respectively. Under applicable state law, neither employee could be suspended absent cause, but neither employee was entitled to a post-suspension administrative appeal to contest the suspension. Both courts indicated that, constitutionally, a short-term suspension that invoked due process protections would require only predecisional proceedings and would not require post-suspension proceedings. In addition, after weighing the competing interests identified in Loudermill in terms of short-term suspensions, both courts held that the predecisional process due required proceedings no more formal and extensive than those required by Loudermill (oral or written notice of the charges, an explanation of the employer's evidence, and an opportunity for employees to present their side of the story) and no less extensive than those required by Goss (oral or written notice of the charges and then, if the individual denies them, an explanation of the authorities' evidence, and an opportunity for the individual to present his or her side of the story). Gillard, 857 F.2d at 1099; Garraghty, 830 F.2d at 1300; see also Click, 609 F. Supp. 1199, 1206-07 (court indicated that constitutionally a short-term suspension invoking due process protection required only a predecisional hearing, and the court held that the hearing is not required to be formal with an opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call witnesses to support the employee's version of the incident).
In determining what process is constitutionally due nonprobationary, competitive service Federal employees suspended for 14 days or less, we are persuaded by the reasoning and conclusions of the courts in Gillard, Garraghty, and Click. We find that, constitutionally, such employees are not due post-suspension proceedings and are due predecisional proceedings no more formal or extensive than those required by Loudermill and no less extensive than those required by Goss. Viewing this case in terms of these requirements, we conclude that the process provided the grievant during the proceedings before the Agency satisfied the requirements of Loudermill and, consequently, was constitutionally sufficient.
The Union does not contest the sufficiency of the notice of the charge against the grievant or the opportunity provided the grievant to reply to the charge. Therefore, we need not address whether the requirements of Loudermill were met in these respects. However, in arguing that the process provided the grievant during the proceedings before the Agency was constitutionally inadequate, the Union contests whether the Agency adequately explained its evidence. Specifically, the Union claims that because the Agency refused to disclose the identity of the informant during the predecisional stage, the Agency failed to adequately explain its evidence, and the predecisional process was, therefore, constitutionally deficient. We disagree. It is clear that although the predecisional process is "necessary," it "need not be elaborate." Loudermill, 470 U.S. at 545. The proposed suspension explicitly informed the grievant of the rule that he had allegedly violated and the informant's allegation against him, even though the informant's identity was not disclosed. In our view, this adequately explained and notified the grievant of the evidence on which the suspension was based. See Schleck v. Ramsey County, 939 F.2d 638, 642 (8th Cir. 1991) (constitutional due process did not require the public employer to disclose all of the details of the disciplinary charges, such as the names of the accusers as demanded by the employees); Poole v. Stephens, 688 F. Supp. 149, 154 (D.N.J. 1988) (revelation of the identity of an informant is not constitutionally required at the predecisional stage).
In claiming that the disclosure of the identity of the informant was constitutionally mandated, the Union has misconceived the purpose of the predecisional process. As Justice White noted in Arnett, "the pretermination hearing is not held for the purpose of making . . . an ultimate determination. . . . The function of the pretermination hearing is, and no more is required by due process, to make a probable-cause determination as to whether the charges brought against the employee are or are not true." 416 U.S. at 200 (White, J., concurring in part and dissenting in part). Justice White restated this purpose for the Court in Loudermill: "[T]he pretermination hearing need not definitively resolve the propriety of the discharge. It should be an initial check against mistaken decisions--essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action." 470 U.S. at 545-46. We find that the explanation of the evidence provided the grievant satisfied the purposes of the predecisional process.
In our view, the essence of the Union's claim in this case is that the employee has the right to scrutinize the Agency's case prior to suspension. We find such a claim is without merit and would transform the predecisional process into an evidentiary hearing that is simply not required. See Pedersen v. Ramsey County, 697 F. Supp. 1071, 1078 (D.Minn. 1988) (refusal to disclose name of an informant did not render predecisional process constitutionally deficient; employee has no right to scrutinize the employer's case prior to discipline). Indeed, what the Union would have us do here, in a case where the Arbitrator found that the grievant had admitted the alleged misconduct, is to turn the predecisional process into a mini-trial--a position that was specifically rejected by the U.S. Court of Appeals for the Sixth Circuit in Loudermill, on remand, based on its reading of what the Supreme Court had held. Loudermill v. Cleveland Board of Education, 844 F.2d 304, 310-11 (6th Cir. 1988) (on remand).
In addition, we view the Arbitrator's finding that the grievant admitted the alleged misconduct during the investigation as a factor that further supports our determination that the process provided the grievant was not constitutionally deficient. See Boals v. Gray, 775 F.2d 686, 690 (6th Cir. 1985) (process by which the employee was suspended met constitutional standards, in part, because the employee did not deny the charges during the predecisional stage of the disciplinary action). We also find that the Arbitrator's recognition that the identity of the informant was not disclosed by the Agency because of the informant's fear of the grievant constitutes an additional factor that supports our determination. See Los v. Wardell, 771 F. Supp. 266, 270 (C.D.Ill. 1991) (need to protect others from a violent individual is a legitimate consideration in determining what predeprivation procedures are constitutionally due).
We find that the cases relied on by the Union are inapposite. All the cases cited for the proposition that names of witnesses must be disclosed involved removals of public employees, rather than short-term suspensions, and involved the process required for post-removal proceedings. Simply stated, we hold that the disclosure of the identity of the informant was not constitutionally compelled and that, therefore, the Union provides no basis for finding the award deficient. As recognized by the court in Garraghty in weighing the competing interests with respect to short-term suspensions, "[r]ealities of the work place . . . require that authority be respected and that discipline be swift." 830 F.2d at 1302.
2. 5 C.F.R. § 752.203(b)
The Union claims that because an employee is entitled to review the material on which an agency relies to support a proposed suspension, the grievant was entitled to have been informed of the name of the informant. As we noted with respect to due process requirements, the proposed suspension explicitly informed the grievant of the rule that he had allegedly violated and the informant's allegation against him, even though the informant's identity was not disclosed. We find that the Union fails to establish that refusing to disclose the name of the informant deprived the grievant of review of the material on which the Agency relied to support the proposed 5-day suspension within the meaning of section 752.203(b). The Union provides no evidence, rulings, or citations of authorities that would support its claim that the process provided the grievant failed to comply with section 752.203(b), and our review of the regulations, including Federal Personnel Manual chapter 752, have found none. In view of our determination that the process provided the grievant adequately explained the evidence and was not constitutionally deficient, we are not convinced that in the circumstances of this case, the material that the grievant was entitled to review under section 752.203(b) necessarily included the name of the informant.
3. The Collective Bargaining Agreement
The Union has also claimed that the award is deficient because the Agency violated the collective bargaining agreement. The Union notes that under Article XX, Section 3, an employee who is the subject of a disciplinary action is entitled to be advised of the facts known to the Agency. The Union asserts that the informant's identity was a fact known to the Agency and should have been disclosed to the grievant. We view the Union's claim as a contention that by failing to find that the process provided the grievant was deficient, the award fails to draw its essence from the collective bargaining agreement, and we conclude that the Union fails to establish that the award is deficient.
We will find that an award is deficient because it fails to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Department of the Air Force, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 43 FLRA 1266, 1269 (1992) (Carswell AFB). The Union fails to demonstrate that the award is deficient under any of these tests.
In this case, the Arbitrator determined that the Agency had afforded the grievant due process. He noted that the grievant was informed in detail of the basis for the proposed suspension and that the name of the informant "would seem to be unnecessary" because the grievant had admitted opening the casket, and he acknowledged that the Agency refused to disclose the identity of the informant because the informant was fearful of the grievant. Award at 6. Thus, the Arbitrator did not consider the informant's identity to be a material fact in determining whether the grievant had engaged in the misconduct alleged. In view of these circumstances, we are not persuaded that the Arbitrator's conclusion that the Agency afforded the grievant due process, despite refusing to disclose the informant's identity, disregards the agreement provision providing for disclosure of facts known to the Agency or is irrational, implausible, or unfounded. See Carswell AFB, 43 FLRA at 1270. Therefore, no basis is provided for finding that the award fails to draw its essence from the collective bargaining agreement.
Accordingly, we will deny the exception.
VIII. Decision
The Union's exceptions are denied.2/
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1/ Although the Union contends that under 5 C.F.R. § 752.404(b)(1) the grievant was entitled to review the material on which the Agency relied to support the proposed 5-day suspension, section 752.404(b)(1) does not apply to suspensions of 14 days or less. However, section 752.203(b) provides for the same entitlement with respect to suspensions of 14 days or less. Accordingly, we will consider the applicable provision.
2/ To the extent that the Agency requests in its opposition
to the Union's exceptions that the Authority direct the Union
to pay the Agency's arbitration costs because the Union's
exceptions are frivolous, we deny the request. Neither the
Statute nor the Authority's Rules and Regulations authorize
the Authority to direct that one party pay the arbitration
costs of the other party as a sanction for filing frivolous
exceptions to an arbitration award. Moreover, as our decision
in this case indicates, the Union's exceptions are not
frivolous.