U.S. Department of Homeland Security
Bureau of Citizenship and Immigration Services
Newark District, N.J.
National Immigration and Naturalization Service Council
AFGE Local 2149
119 LA (BNA) 783
Decided Sept. 15, 2003
Reported May 3, 2004
Milden J. Fox, Jr., Arbitrator
The parties stipulated the following:
1. The grievance is properly before the Arbitrator.
2. AE-2 will be included in the Agency’s post-Hearing brief.
There is no formal written grievance in the instant case.
Statement of the Issue
The parties stipulated the following:
Was the five day suspension of the Grievant taken for just and sufficient cause and to promote the efficiency of the Service? If not, what shall the remedy be?
Suspension Proposal and Suspension Letters
The proposal of disciplinary action is contained on pages 001 through 005 of JE-3. It is dated 29 March 2002 and is signed by John E. Thompson, Acting Deputy District Director. The pertinent parts of the letter (pp. 001-004) say in part the following:
I have carefully reviewed the record in your case relating to allegations of misconduct and have concluded that a proposal of disciplinary action is warranted. Accordingly, this notice constitutes a proposal to suspend you without pay for five (5) days. It is proposed to take this action not earlier than ten (10) days from the date of your receipt of this notice. This notice is based on the following reasons and is being taken for just and sufficient cause in order to promote the efficiency of the Service.
Reason 1—Unprofessional Conduct
On May 5, 2001, you conducted an interview of Ashraf Mahgoub (A75 445 273). In a letter of complaint dated May 22, 2001, Mr. Mahgoub described the interview as ‘very aggressive.’ His letter also articulated that when he attempted to get closer to you so as to hear the questions better, you ‘screamed’ at him, ‘Stay away of (sic) me, do not come closer.’
On May 28, 2001, you conducted an inspection of Mary Beth Brunelle upon her entry into the United States via Newark International Airport. In a complaint lodged with the U.S. Customs Service, Ms. Brunelle incorrectly identified you as a U.S. Customs employee whose ‘smart comments and condescending attitude would not make anyone feel welcome in this country and I am a U.S. citizen.’
On September 19, 2001, you conducted an interview of Merrily and Ramon Quincoces (A78 825 026). In a letter of complaint dated February 8, 2002, Ms. Quincoces described the interview as uncomfortable and your demeanor as unprofessional. Ms. Quincoces stated that you ‘made disturbing statements about the INS and their inability to keep terrorists, drug dealers and murderers out of our country,’ and that you were ‘not going to be responsible for allowing that mistake to happen again,’ in reference to the tragic events of September 11, 2001. You even went so far as to ask Ms. Quincoces as to how you could know if her husband was a terrorist or not. Finally, when Ms. Quincoces stood up and attempted to show you something, you stated in what she described as an aggressive tone of voice, ‘Take a seat.’
On September 21, 2001, Ms. Merrily Quincoces called you to inquire of the status regarding her husband Ramon Quincoces’(A78 825 026) application. After Ms. Quincoces identified herself, you quickly replied, ‘I am in the middle of an interview. What is the problem?’ Ms. Quincoces apologized and asked to be transferred to your voice mail so that she may leave a message for you. You again asked, ‘What is the problem?’ Ms. Quincoces inquired as to whether or not you had received her letter. You responded, ‘Your lawyer has all your information,’ and then immediately hung up on her.
On January 17, 2002, you conducted an interview of Michael and Svetlana Golla (A77 632 701). In a letter of complaint dated January 22, 2002, Mr. Golla advised that you asked him if he was comfortable that his wife had not married him simply to get a green card. During the course of the interview, you made comments to the effect of ‘People always think we know more than we actually do,’ and you don’t like to sign your name because of the shame you have over your job.
Reason 2—Failure To Follow Supervisory Instructions
On Friday, July 20, 2001, you reported for duty wearing blue jeans and sneakers. Officer-in-Charge (OIC) C__ instructed you to go home and change your attire to come into compliance with the Newark District’s Dress Code policy. You failed to follow OIC C__’s instructions and did not go home to change your clothes.
On February 19, 2002, Officer in Charge (OIC) C__ instructed you to prepare a response to a letter of complaint from Ms. Merrily Quincoces dated February 8, 2002. OIC C__ instructed you to provide a response to Supervisory District Adjudication Officer (SDAO) Sharon Dooley by close of business on February 28, 2002. You failed to follow OIC C__’s instructions as you did not provide a response to SDAO Dooley by close of business on February 28, 2002.
In determining the proposed penalty, I considered the nature and seriousness of your misconduct and how it relates to your position as a District Adjudication Officer (DAO). As such, you are responsible for an extensive amount of contact with members of the public and you must be the model of courteous, professional customer relations. Your behavior sets the tone not only for the Newark District Office, but the Immigration and Naturalization Service as a whole. I considered that the incidences described herein are not isolated incidences. In fact, this office has received numerous letters of complaint from members of the public, as well as congressional offices and members of the American Immigration Lawyers Association.
I considered that as a DAO, your conduct is to be governed by the Officers’ Handbook (M-68) at all times while employed by the Service. The guidance contained in the M-68 states on page 6,
‘Aliens appear at Immigration and Naturalization Offices because they have problems. Those problems are real and important to them, no matter how insignificant they may appear to you. It is your duty to give them the same treatment you would like if your situations were reversed. An arrogant or unpleasant manner in official relationships will not be tolerated. Aliens are entitled to certain rights, among which is the right to courteous, considerate treatment by officers of this Service.’
The M-68 goes on to state on page 12, ‘The Service takes the realistic view that courtesy is necessary in our activities and is almost as much a job requirement as any other. It is your duty to be considerate and polite to the public at all times.’
I consider your conduct, as described herein, to be the antithesis of the conduct expected of any federal employee, as well as a direct violation of the guidance contained in the M-68.
In addition to the aforementioned, I considered your entire employment record covering over 21 years of Federal civilian service and the guidance contained in Administrative Manual (AM) 1.1.204.
You will be given ten (10) days from the date you receive this notice (exclusive of the day of delivery) in which to review the material on which this notice is based, and if you so desire, to answer it orally in person, in writing, or both. Consideration will be given to extending this period of time if you submit a request stating your reasons for desiring more time. You may submit with your reply, affidavits or other evidence in support of your answer. In your answer, you may plead extenuating circumstances or make any other representations that you consider appropriate.
Letter of Suspension
The letter of suspension dated 7 November 2002 is part of the unnumbered pages of the grievance package. The letter was issued by Andrea J. Quarantillo, District Director, Newark, N.J., and says in pertinent part the following:
In a letter which was served to you on March 29, 2002, Mr. John E. Thompson, Acting Deputy District Director, Newark District, proposed that you be suspended without pay for five (5) days for the following reasons: Unprofessional Conduct and Failure to Follow Supervisory Instructions.
Careful consideration has been given to the notice of proposal and the evidence supporting that proposal which you received on March 29, 2002. Additionally, I considered the written reply dated April 19, 2002 that was prepared and submitted on your behalf by your designated representative John Parkin. I also considered the oral reply that was presented before Officer in Charge of the Elizabeth Detention Facility, Christopher Shanahan on June 20, 2002. I find that the reasons are fully supported and proven by a preponderance of the evidence and warranting of disciplinary action.
Therefore, it is my decision to suspend you without pay for five (5) days. Accordingly, your suspension will commence on November 18, 2002 and you will return to a duty status on November 23, 2002. This action is being taken for just and sufficient cause in order to promote the efficiency of the Service.
In deciding to suspend you, I considered your entire employment record, the guidance contained in Administrative Manual (AM) 1.1.204, and the factors set forth in my memorandum to Dr. Dennis Desautels dated October 23, 2002, which is hereby incorporated into this decision by reference. A copy of that memorandum is enclosed.
Laws, Rules, Regulations or Contracts
The content of all of the above will not be set forth at this point in the Award. Any portion of the above that is necessary to complete the Award will be documented in the body of the Award. The one regulation that will be quoted in part is M-68, ‘Officers’ Handbook. A Guide for Proper Conduct and Relationships with Aliens and the General Public’. This document was signed for by the Grievant on 9/30/80 as a Border Patrol Agent (5), GS-5, in Alamogordo, NM. The update to M-68 is dated September 2001. The parts referenced in the instant case are as follows, which are on pp. 12 and 13: * * *
The Service takes the realistic view that courtesy is necessary in our activities and is almost as much a job requirement as any other. It is your duty to be considerate and polite to the public at all times.
* * *
There always are people who will insist on special favors and privileges not accorded by the law. To such people you must be firm and uncompromising. But remember that a ‘no’ can be said courteously. A reasonable person will accept a reasonable answer and explanation. The few who may be momentarily offended usually will in the end come to understand that you were performing your duty as required by law.
* * *
Cooperative Spirit and Loyalty to the Service
* * *
Critical or personal remarks should be avoided which might tend to cause ill feelings or rumors about other employees, the Service, our Government, the President of the United States, or the recognized political parties. Officers must refrain from criticizing, to the public, the laws which they are required to enforce but about which they may have personal contrary opinion.
* * *
The instant case is between the U.S. Department of Homeland Security (hereinafter referred to as the Agency), Newark, N.J. and AFGE Local 2149 (hereinafter referred to as the Union).
Reason 1, the charge of Unprofessional Conduct, stems from four letters of complaint that were received by the Cherry Hill Suboffice from individuals who had allegedly presented themselves before the Grievant for benefits and entitlements under the Immigration and Nationality Act. The Grievant is a District Adjudication Officer (DAO) who works out of the Cherry Hill Suboffice of the Newark, N.J. District Office. Three letters involved interviews that the Grievant allegedly conducted for pending adjustment of status applications; i.e., green card applications, while the fourth complaint was received from a United States citizen that the Grievant inspected on her arrival at the Newark International Airport on 28 May 2001, in which Mary Beth Brunelle allegedly wrote the U.S. Customs employee made ‘smart comments and condescending attitude would not make anyone feel welcome in this country and I am a U.S. citizen. Perhaps he should become a baggage handler.’ Ms. Brunelle incorrectly identified the Grievant as a U.S. Customs employee.
Ms. Brunelle’s letter was introduced into evidence. She did not testify at the Hearing.
On 17 January 2002, Michael and Lana Golla had an interview concerning the wife’s request for permanent residency. The letter telling of the interview is JE-3, pp. 015-017 (the grievance package). During the interview, the Grievant allegedly said, ‘People always think we know more than we actually do.’ The letter stated, ‘I would think he would have all of the information available.’ Later in the letter, the Grievant allegedly said, ‘...he didn’t like to sign his name because of the shame he has over his job.’ The letter says, ‘He went on for a little while like this.’In conclusion, the author said, ‘We’ve done everything the right way, and we are getting treated very unfairly.’
Neither one of this couple testified at the Hearing.
On 8 February 2002, Merrily Allison Quincoces wrote a letter complaining of a 19 September 2001 interview conducted by the Grievant in regard to her husband’s filing for his green card. In short, the letter described the interview as uncomfortable and with the Grievant’s demeanor as unprofessional along with disturbing statements about the INS. The Grievant allegedly asked Ms. Quincoces as to how you (meaning the Grievant) could know if her husband was a terrorist or not. Allegedly he also used an aggressive tone of voice in telling the lady to ‘Take a seat.’ On 21 September 2001, Ms. Quincoces allegedly called the Grievant to inquire about her husband’s status with the green card situation. The lady was allegedly asking as to possible receipt of documentation she had sent the Grievant. The Grievant allegedly said, ‘Your lawyer has all your information,’ and immediately hung up.
Ms. Quincoces testified at the Hearing.
On 22 May 2001, Ashraf Mahgoub wrote a letter complaining about an interview he had with the Grievant. The interview date is not listed in the complaint letter but the Agency, in its documents says it was 5 May 2001. Mr. Mahgoub described the interview as ‘very aggressive.’ The letter also stated that when he attempted to get closer to the Grievant so he could hear the questions better, the Grievant screamed at him, ‘Stay away of (sic) me, do not come closer.’
Mr. Mahgoub did not testify at the Hearing.
In Reason 2, the Grievant is charged with two counts of failure to follow instructions of the Officer-in-Charge, C__.
On Friday, 20 July 2001, the Grievant allegedly failed to carry out OIC C__’s instructions to go home and change clothes.
The Grievant allegedly failed to carry out OIC C__’s instructions to prepare a letter of response to Ms. Quincoces’ letter of complaint dated 8 February 2002. The instruction was to prepare the letter by 28 February 2002. The Grievant alleged that he did not see the 19 February 2002 request for the letter. A letter was prepared by the Grievant.
OIC C__ testified at the Hearing.
It has been pointed out that after the alleged oral order involving the clothes changing incident, which took place in the Grievant’s office, the OIC had some type of reaction or seizure and ran outside. It took another employee 30 minutes to get the OIC calmed down. Ms. Dooley came outside and took over. The employee left. The OIC returned to the office. Ms. Dooley was the SDAO (1st line supervisor) at the office.
Ms. Dooley did not testify at the Hearing.
The Union also points out that the Douglas factors were not taken into consideration in determining the five day suspension without pay that was given the Grievant. The Union is also saying that the Agency is discriminating against the Grievant since he is a proactive President of the Local Union.
The parties being unable to settle this matter have brought it before this Arbitrator for an Award.
Position of the Parties
It is the position of the Agency that its decision to suspend the Grievant was neither arbitrary nor capricious. Contrary to the Union’s assertion, it was not done in retaliation for the Grievant having filed numerous EEO complaints, due to an alleged personal animus of his SDAO because he is an active Union official. The Grievant was suspended for five days without pay for the unprofessional conduct that he displayed towards Mr. Mahgoub, Mr. and Mrs. Quincoces, Mr. and Mrs. Golla and Ms. Brunelle, as well as his failure to follow the instructions of his SDAO on two separate occasions. It goes without saying that the Agency cannot operate successfully if we have employees treating our customers in an unprofessional manner and/or failing to follow supervisory instructions.
To sustain the five-day suspension of the Grievant, this case requires that you uphold some of the basic tenets of the employee-labor relationship:
1. Management gives employees instructions to follow.
2. When an employee fails to follow instructions—in this case on two separate occasions—disciplinary action is necessary.
3. When an employee is disrespectful to members of the public—in this case on five separate occasions—disciplinary action is necessary.
As a five-day suspension for the misconduct in which the Grievant engaged is within the bounds of reasonableness as outlined in the Agency’s Table of Penalties, the Agency would ask that you find in favor of management and uphold the five-day suspension of the Grievant.
It is the position of the Union that it does not feel that the Agency has met its burden and proven any of their charges against the Grievant. The Agency has not provided any direct evidence on Specifications One, Two, and Five of Reason One. The Agency has not proven its version of events on the other charges.
Even if the Grievant had engaged in the misconduct that he was alleged to have engaged in, the Agency’s chosen penalty of five days is excessive and should be mitigated. The Agency failed to do a proper analysis of the Douglas factors and therefore the Arbitrator should do an independent analysis. The Grievant is a 23-year employee with no prior record. Agency managers engaged in questionable tactics against the Grievant that smack of retaliation.
The Union also notes that the Grievant made a discovery request, which was submitted as an exhibit. He asked for the records of other employees who had faced similar charges in order to determine if his penalty was excessive. The Agency refused to provide these records. The Union asks the Arbitrator to draw a negative inference against the Agency for its failure to provide these records and to find that the penalty against the Grievant was excessive.
The Union asks that the Arbitrator uphold the grievance and not sustain the charges against the Grievant. The Agency failed to meet its burden and prove its claims. In the alternative, the Union asks the Arbitrator to mitigate the 5-day penalty. It is suggested that an appropriate penalty for a 23-year employee with no prior record to be a written reprimand. The Union also asks that the Arbitrator award attorney’s fees based upon the Agency’s negligent presentation of their case by failing to bring witnesses with direct knowledge of the applicant complaints in Specifications One, Two, and Five of Reason One. In the alternative, we ask the Arbitrator to retain jurisdiction for a possible supplemental attorney fee application to be issued after the award.
In the area of discharge or discipline, it is incumbent upon the Agency to prove guilt of wrongdoing and particularly so when the Contract, law or regulation requires ‘cause’ or ‘just cause’ for the disciplinary action. Furthermore, the degree of proof in a pure grievance arbitration case is generally the ‘preponderance of evidence’ rule.
In the area of burden of proof or burden of the affirmative, the Agency has the initial burden to justify its action. Once this burden has been shouldered, the burden of the affirmative passes to the Union which must, if it is to prevail, either successfully refute the Agency’s case of establishing ‘just cause’ or else prove mitigating circumstances.
The burden of the Agency can be satisfied through the establishment of a ‘prima facie’ case. This condition has generally been defined as a presentation of evidence, sufficient in quality and quantity to warrant a ruling by an Arbitrator in favor of the presenting party ‘if no contrary evidence’ is proffered by the opposing party (I. B. Jones, Evidence, ¶205, 5th Ed., 1958 Supp. 1971 as cited in Owen Fairweather, Practice and Procedure in Labor Arbitration, BNA, Inc., p. 201).
If the Grievant admits that he/she has performed the act for which he/she was disciplined, the affirmative of the issue generally moves to the Grievant. He/she must prove that there was good reason, excuse or mitigating circumstances for his/her acting as he/she did. Should the Grievant successfully establish his/her reason or excuse for having committed the act(s), the burden shifts back to the Agency.
As pointed out by the parties, the instant case involves matters of credibility. In order to establish proof it is possible for an Arbitrator not to make an uneasy, highly uncertain credibility choice between opposing witnesses merely by using a legal device for determining the facts from conflicting evidence in the record. This device is the introduction of a presumption which places the burden of proof on one of the parties to produce sufficient evidence to avoid a ruling against that party on the issue. The party having the burden of proof is said to have the ‘affirmative of the issue,’ meaning that it is the party that would be defeated if the bare question to be answered were put to the Arbitrator and no evidence were given on either side. Furthermore, in imposing the ‘affirmative of the issue,’ it is done imposing same ‘upon the party whose contentions depart further from normal likelihood’(John MacArthur, Evidence: Common Sense and Common Law, The Foundation Press, Inc., Mineola, N.Y., 1947, p. 179).
The above concepts also may necessarily take into consideration other details as set forth in heretofore nonspecified laws, rules, regulations and decisions by the FLRA, MSPB and the Courts. If any of these additional guidelines are needed, they will be set forth in the body of this discussion.
In arriving at his Award, this Arbitrator has read the Hearing transcript, the post-Hearing briefs, all exhibits and checked the citations listed in the briefs. The instant case will now be analyzed in light of the procedures and information obtained from the above sources.
The first matter to be discussed is Reason 2—Failure to Follow Supervisory Instructions as set forth in Specifications 1 and 2.
On Friday, July 20, 2001, you reported for duty wearing blue jeans and sneakers. Officer-in-Charge (OIC) C__instructed you to go home and change your attire to come into compliance with the Newark District’s Dress Code policy. You failed to follow OIC C__’s instructions and did not go home to change your clothes.
Most cases of insubordination involve a worker’s refusal to follow or failure to follow the directive of a duly designated member of management or comply with an established procedure. On reviewing the propriety of discipline in such cases, arbitrators generally consider not only the magnitude of the offense and prior occurrences of such behavior, but also whether
• The order or procedure in question was clearly expressed;
• The employee was made aware of the possible consequences of the action; and
• The discipline was applied in a nondiscriminatory and progressive manner.
(Grievance Guide, 10th Ed., BNA Editorial Staff, 2000, p. 36.) This reference also states that ‘ ...the worker’s open defiance of management’s directives constituted just cause for discipline.’ (Federal Correctional Institution, 75 LA 295).
The Officer-in-Charge, C__ a second line supervisor, testified that she instructed the Grievant to go home and change his attire to come into compliance with Newark District’s Dress Code policy. This same statement is contained in the various management oriented documents that are exhibits in the instant case. However, the Grievant testified that once in his office, when C__ began her alleged instructions to him, she never finished, as she began having some type of mental problem or seizure and rushed out of the Grievant’s office before completing the alleged instructions. She then ran outside with her car keys in hand. Nerida Arevalo testified she followed C__ outside the building and spent about 30 minutes with her trying to calm her down, until Sharon Dooley came along and stayed with C__. Ms. Arevalo stated she was very pale and her eyes were coming out, could not control herself and was not in shape to drive a car . Ursula Risko, on p. 177, also testified that C__ walked out of the office kind of frazzled, and then Nellie (Arevalo) helped C__, tried to calm her down. She was very upset. C__ and Nellie went outside to try and calm her down. Risko did not go outside with the two employees.
There are two interesting points about this incident. Nowhere in any Agency exhibits that made reference to the alleged Specification 1 was mentioned anything about C__ ‘losing it.’ The three people who testified about C__ ‘losing it’ on the day in question were not all members of the Union. Sharon Dooley was not mentioned in C__’s testimony nor in any of the Agency exhibits pertaining to the incident. Sharon Dooley refused to come to the Hearing to testify. Sharon Dooley was the first line supervisor, under C__, who supervised the Grievant.
C__ testified that she got upset because the Grievant ‘did not do what I told him to do. He wanted to fight with me’ and ‘... I didn’t think it was the right place to—to have an argument about it, so I walked away.’ He said, ‘I’m sorry, but I’m not going to do it. I’ve spoken to Ms. Dooley about that and we always had—we’ve always been able to do this.’ The witness went on to say that she got her purse and went outside the building and that the other employee came out and talked to her, but there was no calming down. In conclusion, she said, ‘I felt that I walked away from an incident that could have been disruptive to the whole office.’ She added, ‘After that date he—when he was in the office on Fridays doing his union work he wore jeans,’ as he was not under my supervision.
In C__’s testimony, nothing was said about Ms. Dooley coming outside to take over for Nerida Arevalo, nor did she say anything about how long she was outside the office. As opposed to the three Union witnesses who said C__ ‘lost it,’ the above listed testimony gives an entirely different picture. Furthermore, C__ testified that she gave a direct order to the Grievant, who very specifically refused to carry it out.
If what C__ says is what happened, the minute the Grievant refused to carry out the direct order, C__ should have called the Union Steward or Ms. Dooley or both, and given a direct order to the Grievant with the admonishment that failure to carry out the order could result in discipline, up to and including discharge. This C__ failed to do. This places the office portion of the incident in the ‘he said, she said’ situation.
Another unusual matter about this incident is that C__, a second line supervisor, accosted the Grievant with regard to the dress code. Why did a second line supervisor take the lead in this matter? As will be seen in the Specification 2, the letter directing the Grievant to write his account of the reported complaint from Ms. Quincoces, C__ gave the letter to SDAO Dooley to deliver to the Grievant because Ms. Dooley was the Grievant’s first line supervisor. C__ is not consistent in her handling of personnel matters. This type of action or inaction is enough to confuse employees, especially when there are allegedly two different positions on Friday Dress Code coming from the first and second line supervisors. This latter item could have been settled if SDAO Dooley had not refused the Agency’s request for her to testify at the Hearing. This refusal on the part of an important Agency witness to testify certainly weakens the Agency’s position on certain matters and, at the same time, strengthens the Union’s allegations.
The Arbitrator can only conclude that C__, for whatever reason, ‘lost it’ and never gave a complete set of instructions or orders to the Grievant about going home and changing his attire to comply with the Newark District’s Dress Code. Hence, the Agency has failed to prove Specification 1.
There was never any question by anyone that C__, on 9 July 2001, reissued the Newark District’s Dress Code stating that compliance was mandatory. Inappropriate office attire included denims, sneakers or athletic shoes. The Code did not prohibit casual dress days or supervisor exceptions to the general rules. Interestingly, every Union witness testified that denims were being worn by individuals all the time. The employees who worked for C__all said they stopped wearing denims after C__’s letter of 9 July 2001 was issued. Specifically for whom all of these denim wearing employees worked or who they were was not specifically established. But the Union’s testimony did establish that, except for C__’s group, the District Dress Code was not being strictly enforced. The same employees testified that they did not know anyone in the Newark or Cherry Hill office who was disciplined over the dress code.
On February 19, 2002, Officer-in-Charge (OIC) C__ instructed you to prepare a response to a letter of complaint from Ms. Merrily Quincoces dated February 8, 2002. OIC C__instructed you to provide a response to Supervisory District Adjudication Officer (SDAO) Sharon Dooley by close of business on February 28, 2002. You failed to follow OIC C__’s instructions as you did not provide a response to SDAO Dooley by close of business on February 28, 2002.
The letter in question contains a notation in ink that says ‘Placed in mailbox 2/19/02.’ It also contains what appears to be some initials, but these were never identified by any Agency witness. OIC C__ wrote the letter and gave it to SDAO Dooley for delivery to the Grievant. When asked why she did not just walk over to the Grievant’s desk, hand the memo to him, and ask him to write this, C__’s answer was, ‘It went through official channels. I had to give it to Sharon.’ This is certainly different from the dress code incident of Specification 1.
The note on the memo says, ‘Placed in mailbox 2/19/02.’ First of all, it is not known in whose mailbox it was placed or even if it had been placed in the Grievant’s mailbox, had it been moved, and later replaced in the Grievant’s mailbox. The Grievant testified that by the time he saw the memo, the time line had expired. This Arbitrator has experienced several instances of mail allegedly being placed in his office mailbox (office with only about 15 people). In one case, two letters were allegedly placed in his mailbox in September. The letters were actually found in his mailbox the following February. One letter was requesting a recommendation for a job involving a former student. The second was a city asking him to arbitrate a grievance. Knowing in whose mailbox the memo was placed and by whom is important!
Of course, the real question is why Ms. Dooley did not hand the letter to the Grievant and repeat the instructions contained in the memo. C__ said the Union would have to ask Ms. Dooley, who had refused the Agency’s request to appear at the Hearing. The Union wanted to call SDAO Dooley to come and testify. After some discussion on Tr. 70-1, C__ testified, ‘She’s not going to’ (come and testify, that is). Again, SDAO Dooley’s refusal to testify at the Hearing has weakened the Agency’s case. As a result, the Arbitrator can only say that the Agency has failed to prove that the memo in question got to the Grievant in time for him to meet the date line and therefore did not prove Specification 2.
On 22 March 2002, Sharon Dooley wrote a memo to the Grievant advising him that he was to respond to Ms. Quincoces’ letter of complaint by close of business Wednesday, 27 March 2002, with the added statement that ‘Failure to respond to this complaint letter may result in disciplinary action, up to and including your removal from the Service.’ The Grievant wrote the requested response dated 27 March 2002.
In summary, it is this Arbitrator’s opinion that the Agency has failed to prove Reason 2, Specifications 1 and 2.
In addition to the missing testimony that resulted from Sharon Dooley’s (SDAO, Cherry Hill, N.J. Office) refusal to appear at this Hearing, another important fact in her lack of attendance is that she wrote the memo to the Acting District Adjudication Officer, Newark, N.J. on 17 December 2001 requesting disciplinary action against DAO B__ (the Grievant). The letter was forwarded with C__’s (OIC, Cherry Hill, N.J. Office) concurrence with the recommendation. The request was made for alleged inappropriate and unprofessional manner complaints.
In Reason 1—’Unprofessional Conduct,’ there are 5 Specifications of alleged misconduct dating from 5 May 2001 to 17 January 2002. In Sharon Dooley’s request for disciplinary action there are 17 complaints of alleged inappropriate and unprofessional manner on the part of the Grievant. The referenced attachments to these 17 listed complaints were not attached to the request; however, two of the complaints are included in JE-3, pp. 014 and 023. The complaint documents concerning the other three specifications are dated after 17 December 2001, the date of the disciplinary request. Hence, they would not be included in SDAO Dooley’s request for disciplinary action. In SDAO Dooley’s request letter she listed in item 12 the following:
In a memo to file dated August 20, 2001, by OIC C__, she indicated that DAO B__ reported for duty on July 6, 2001 wearing shorts (L-I). This was in violation of the District ‘Dress Code’ that was implemented on April 01, 1999 (Attachments L4-L6). Although she advised him to go home and change into appropriate attire, he did not comply with her instructions.
The last sentence is inaccurate. The memo to file says in part:
Friday, July 6, 2001—B__ reported for duty wearing shorts. . . . , I became aware that day of the other individuals in the office that were wearing what I felt was inappropriate for office apparel even under the guise of ‘Dress Down Friday.’ ... On July 9, 2001, I reissued the Dress Code with a cover memo advising that compliance was mandatory.
C__’s 20 August 2001 memo to file does not say she advised the Grievant to go home and change clothes on 6 July 2001 as stated in SDAO Dooley’s item 12. It was on Friday, 20 July 2001, after the re-issuance of the 1999 District Dress Code, that the incident in question occurred.
Since most of the items spelled out in SDAO Dooley’s disciplinary request letter do not contain backup material, this particular error is pointed out with the simple question of ‘How many other errors are contained in SDAO Dooley’s disciplinary request letter?’
As pointed out in the beginning of this section, the Agency has the burden of proof since the instant case is that of a disciplinary nature, a five day suspension without pay.
In presenting its case, the Agency did not produce any witness who had personal knowledge of the charges pertaining to Reason I, Specifications 1, 2 and 5. These specifications pertain to letters written by Ashraf Mohgoub, Mary Beth Brunelle and the Gollas (Michael and Svetlana). There was nothing presented in evidence to indicate that anyone from the Agency had contacted these individuals to verify any of their statements set forth in their complaint letters. It was indicated at the Hearing that certain of these individuals would not testify for fear said testimony would negatively impact their adjustment of status applications. However, Mary Beth Brunelle was a United States citizen who sent in a complaint card with her address on it. She could have been contacted at her home in Pelham, N.H. Her complaint occurred at the Newark International Airport, not at the Cherry Hill office during an interview, as was the situation with the other two alleged complaints about the Grievant. She would or should not have had any alleged reason for not verifying specific details of her complaint or even attending the Hearing, unless there was an economic reason for not coming to the Hearing. There is also the possibility that the complaint card was written when she was upset, but after she calmed down she realized that the complaint had been overstated and she was not going to support it in any way. As stated previously, it is unknown if the Agency ever contacted this lady.
Reason 1, Specifications 3 and 4 concern complaints made by Merrily Allison Quincoces, a United States citizen. It involved an interview of 19 September 2001 and subsequent telephone calls with regard to her husband, Ramon Quincoces-Cendoya, who was at the time in the process of filing for his green card (Case A78-825-026).
Mrs. Quincoces went into the Grievant’s office for her portion of the necessary interview. She testified that upon entering the office, she noticed a target hanging on the office wall with the center portion shot out. ‘This made me feel intimidated and I cannot think of any reason for that to be displayed other than for the intimidation factor’.
Mrs. Quincoces went on to testify that during the interview, the Grievant made her feel ‘really uncomfortable’ and made inappropriate statements regarding the INS’ ability to keep terrorists, drug dealers and murderers out of the country and that he was not going to be responsible for making any more mistakes by allowing such individuals into the country. Mrs. Quincoces testified that when she stood up to point to something that he had on his desk, he directed her to take a seat, as if she were a criminal.
A. I completely understand, and after September 11th I could completely forgive the attitude he had. I could imagine the frustration, but, when I stood up to point something out on his desk and he told me to take a seat like I was a criminal, there is a line that’s been crossed.
Q. All right. Are you aware that some applicants, during the interview process, become very belligerent and loud and actually have to be removed by security because they become threatening?
A. Look at me. I weigh a hundred fifteen pounds. Come on.
Q. I’m not saying you engaged in that behavior, I’m just saying that—
A. I spoke to him—I toned my personality down to talk to him, to be very nice, relaxed and polite and confident, comfortable, and his response to me was very disrespectful and unprofessional.
Mrs. Quincoces testified that following the interview, she wrote down everything that had occurred during the interview and it was not until after she attempted to contact the Grievant by telephone beginning on 21 September 2001, to confirm that the information which she sent via Fed Ex (in the wake of the anthrax scares following the tragic events of 11 September 2001) had been received and had been consolidated with her husband’s application, that she became frustrated with the manner in which the Grievant was conducting his official business. When Mrs. Quincoces called on 21 September 2001 to inquire about the possible receipt of the Fed Ex shipment, the Grievant answered the phone and the conversation went as follows:
A. He answered the phone and he sounded annoyed and he said he was in the middle of an interview and I said ‘just transfer me to your Voice Mail’ ... and he said, your—along the lines of, ‘Well, your lawyer has all the information’ and he hung up on me. He didn’t answer my question or make any sense to me at all. That was the extent of the conversation.
Mrs. Quincoces, after 21 September 2001, made many calls to the Grievant’s Voice Mail, but never spoke to him again. She testified that with every call she left a Voice Mail message on the Grievant’s machine wherein she asked him to please call her back to make sure he got the information, but ‘he never returned my calls.’
At the conclusion of her testimony, Mrs. Quincoces was asked the following:
Q. Just to clarify it, Ms. Quincoces, was he courteous to you during the interview?
Q. How about the phone call?
Q. Did you expect more professionalism on the part of a government employee?
On cross-examination, the Union questioned why it took Mrs. Quincoces so long to write her letter of complaint. Her answer was as follows:
Q. Why did you wait five months to write a letter of complaint?
A. After I left the meeting with B__I wrote down everything that happened, and I was livid, to say the least, and my husband told me, ‘Just wait, this is just the government, this is the way it is, just relax, let it all work out, it’s going to be fine,’ and that isn’t my personality. I was ready to write a letter right away and, so, I waited and then after I talked to B__ three or four days later and he was curt—just hung up on me, I felt like this man is not doing his job the way I understood his job to be.
And then, after the numerous calls I made—and I didn’t even get a letter of, you know, leave us alone, it’s pending. That letter I would have accepted gladly and put it in the files, okay, just be patient, but that didn’t even happen, so that’s—I wrote the letter five months later—sorry, I forgot what question you asked me.
I wrote the letter five months later because I talked to a state trooper friend of mine, who is now in Iceland with the terrorist task force, and I said, ‘What is the proper way a person should deal with me as a U.S. citizen?’ And I talked to him about what happened. He said, ‘That is not the way. That is absolutely unacceptable. Write a letter and don’t be afraid, nobody is going to do a single thing to you,’ so here I am.
The Union believes that as a DAO, the Grievant has a responsibility to thoroughly question each and every applicant in order to determine whether a benefit is appropriate and that in so doing, interviews of adjustment of status applicants, i.e., Mr. Quincoces, can turn into an interrogation. The Agency did not disagree that a DAO must thoroughly question applicants, but what the Agency did disagree with is the interrogative style that the Grievant employed and was experienced by Mr. and Mrs. Quincoces. Former Newark District Director Andrea Quarantillo, who has prior experience as a District Adjudication officer, testified that interviews of applicants are to be conducted in a very professional atmosphere with the officer conducting the interview in a courteous and polite manner. She also testified that the ‘hard questions’ that DAOs need to ask during an interview should be posed in a polite and courteous manner.
Ms. Quarantillo’s testimony illuminates the guidance contained in the Officer’s Handbook, Form M-68, which the Grievant not only acknowledged receipt for on 30 September 1980, but also agreed to make its contents the basis for his conduct while employed by the Agency. In accordance with M-68, an officer is to be courteous and refrain from interjecting their own personal views and/or challenging relationships without any evidence other than their own personal suspicions and/or biases. M-68 states on page 11, ‘Every member of the public is entitled, as an absolute right, to courteous, fair, impartial and sympathetic treatment from every employee of this Service’. On page 13, it further states that ‘Officers must refrain from criticizing to the public the laws which they are required to enforce, but about which they may have personal contrary opinions.’ When asked on cross-examination if he acted in accordance with the M-68 and refrained from expressing his personal opinions to applicants, the Grievant responded, ‘I’ll tell it to you this way. I am not going to demean myself by lying or trying to con some of the customers that come in’.
In summary, this Arbitrator has found that the Agency has only proven Reason I, Specifications 3 and 4.
The MSPB in Joe E. White v. U.S. Postal Service (SL-0752-95-0304-I-1, 8 October 1996) said that when an Agency does not sustain all of the charges against an employee, the judge (or arbitrator) is free to substitute his or her judgement as to what the appropriate penalty should be. In addition, the Board and Courts have ruled that error on the part of the Agency (such as blatant untimeliness) in proposing and taking action, when considered with other factors such as performance, etc., can be used to mitigate the penalty. This last sentence does not apply to the instant case, but has been included to show the total meaning of this MSPB decision.
The two supervisors involved in the instant case were transferred to Newark sometime between the filing of the original recommendation and this Hearing.
The Union pointed out that after the Grievant accepted a Union National Officer’s position, he became 100% Union. The Agency took the position that as 100% National Union, he did not have any DAO business in the Cherry Hill office, so the Agency changed the locks and locked the Grievant out of the building and his old office. The Grievant wanted to come into the office on the weekends and work overtime to help with the case load. By changing the locks, the Grievant could not get into the building. The Agency based its action on the Security Officer’s Handbook which says under ‘12. Locks and Keys’ b.) (2) and b.) (3)(a) the following:
(2) ... The combination or code used to activate an electro-mechanical door lock should be changed at least annually and when any person having knowledge of the combination no longer requires access to the area.
* * *
(3)(a) ... Key cards should be voided in the system when lost, stolen, or when access is no longer required and the card recovered.
If the Agency failed to change the locks when other employees left the Cherry Hill Suboffice, then local management was simply in violation of AE-2.
In conclusion, as a National Officer working on 100% official time, the Grievant no longer required regular access to the Cherry Hill Suboffice and therefore the locks were changed in accordance with the Security Officer’s Handbook.
The Union brought up the location of the instant Hearing. The Union felt the Hearing could have been held in the Cherry Hill Suboffice employees’ breakroom or the interrogation room used by another division. As the Union pointed out in other testimony, Cherry Hill was about half the size needed. Trying to crowd an arbitration hearing into that type of building containing different divisions would have been very difficult. Neither side said anything about the noise level, but this Arbitrator has been down that road before and the answer is ‘no way will that happen again.’
The grievance is denied in part and sustained in part. Reason I, Specifications 3 and 4 are denied, as the Agency proved its case. Reason 1, Specifications 1, 2 and 5 plus Reason 2, Specifications 1 and 2 have their grievance sustained, as the Agency failed to prove its case.
Due to the MSPB case cited above the Grievant’s five day suspension is mitigated to a one day suspension without pay. The Grievant is to be made whole for the other four days with interest.
The Union asked that the Arbitrator award attorney’s fees based upon the Agency’s negligent presentation of their case by failing to bring witnesses with direct knowledge of the applicant complaints in Specifications 1, 2 and 5 of Reason One. It is suggested by this Arbitrator that if the Union’s attorney wants to pursue this avenue, he should support his request with Federal Labor Law documentation that supports his claim.
Per the parties’ request, this Arbitrator will retain jurisdiction for 60 days, only with regard to any request for attorney’s fees. Such a request must be supported by Federal Labor Law documentation that supports the claim. The 60 days commence on the day you receive this certified copy of the Award.
The Douglas factors were included in the Agency’s analysis.