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In re
U.S. Department of Homeland Security
Bureau of Citizenship and Immigration
Services
Newark District, N.J.
and
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
Stipulation
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.
Grievance
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
Specification 1
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.’
Specification 2
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.’
Specification 3
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.’
Specification 4
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.
Specification 5
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
Specification 1
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.
Specification 2
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: * * *
Courtesy
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.
* * *
Be Firm
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.
* * *
Background
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
Agency:
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.
Union:
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.
Discussion
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.
Specification 1
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.
Specification 2
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?
A. No.
Q. How about the phone call?
A. No.
Q. Did you expect more professionalism on the part of a government
employee?
A. Yes.
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.’
Award
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.