FLRA just published a decision describing how the AFGE Border Patrol Council very skillfully overturned a Customs and Border Protection employee’s five-day suspension for failing a field sobriety test while off duty and getting arrested.  AFGE, 69 FLRA 1. It is worth reading if for no other reason than to remind ourselves that an arrest does not equal a conviction. The words below are taken verbatim from FLRA’s decision describing the background of the case.

While the grievant was off duty and driving his privately owned vehicle, he was involved in a single-vehicle accident.  The accident occurred after the grievant left a bar where he admittedly consumed alcohol.  The accident caused damage to a fence, a guard rail, and a street sign.  As a result of the grievant’s performance of field sobriety tests administered by a police officer (the officer), the officer arrested the grievant under suspicion of driving while intoxicated (DWI).  The police did not obtain the grievant’s blood‑alcohol content, and, ultimately, did not pursue criminal charges against the grievant.

After the grievant notified the Agency of his arrest, the Agency placed him on administrative duty, which precluded him from working administratively uncontrollable overtime (AUO).  The Agency then suspended the grievant for five days for conduct unbecoming a law-enforcement officer.  In its documentation of the charge, the Agency recited the contents of the police report, including the officer’s description of the grievant’s performance of the field sobriety tests.

The Union filed a grievance challenging the suspension, and the grievance went to arbitration.

The issues before the Arbitrator were: “(1) Whether the five[-]day suspension of [the grievant] was for just and sufficient cause and only for reasons as will promote the efficiency of the [s]ervice”; and “(2) If not, what is the appropriate remedy?”  Specifically, the parties asked the Arbitrator to determine whether the Agency had met its burden to show that: “(1) the charged conduct occurred[;] (2) a nexus exist[ed] between the conduct and efficiency of the service[;] and (3) the particular penalty imposed [was] reasonable.”  In this regard, the parties agreed that, in order for the Arbitrator to uphold the Agency’s action, a “preponderance” of the evidence had to support that action.

“Considering the evidence in its entirety,” the Arbitrator found that the Agency had not established “by a preponderance of the credible evidence” that it had just cause to discipline the grievant for conduct unbecoming of a law-enforcement officer.  Regarding the charged “conduct,” the Arbitrator found that the Agency essentially “equate[d] the alleged conduct for which [the grievant] was arrested [with] a conviction for DWI.”  Although the grievant admitted to drinking on the night of the accident, the Arbitrator noted that this did not establish that the grievant’s blood-alcohol level exceeded the legal limit when the accident occurred.  In this regard, the parties stipulated at arbitration that the officer believed he had probable cause to arrest the grievant based on his performance of the field sobriety tests.  But the parties also stipulated that this was not “in and of itself . . . conclusive evidence that [the grievant] was [guilty of DWI].”  Thus, the Arbitrator found “problematic the Agency’s exclusive reliance on the hearsay evidence of the police report,” as well as the arrest, in order to establish the grievant’s misconduct.

Notwithstanding the officer’s observations in the police report, the Arbitrator stated that “the legal standard requires preponderant evidence as opposed to suspicion of guilt,” and he noted a lack of non-circumstantial, “objective,” “documentary,” or “probative testimonial” evidence of the grievant’s guilt.  “Absent an admission of DWI by [the grievant] or an independent fact‑finding investigation conducted by the Agency establishing that [the grievant] committed the crime of DWI,” the Arbitrator found that the Agency “improperly inferred that [the grievant] was guilty of driving under the influence of alcohol” based solely on the police report and the grievant’s arrest. And, “irrespective” of the “overlay” of the charge of “conduct unbecoming [a law‑enforcement officer],” the Arbitrator found that the “underlying conduct” at issue was an alleged occurrence of DWI, which the Agency had not proven.

In finding that the grievant’s arrest provided an insufficient basis for charging him with misconduct, the Arbitrator rejected the Agency’s argument that the grievant had violated Agency “policies and guidelines” that discourage employees from engaging in “criminal, infamous, dishonest, or notoriously disgraceful conduct.”  In this regard, the Arbitrator noted that “to the extent that violations of those policies implicate criminal conduct, the criminal standard of proof beyond a reasonable doubt for conviction becomes applicable, with the preponderance[-]of[-]the[-]evidence standard retained for adverse and disciplinary purposes.”

Based on the foregoing, the Arbitrator concluded that the Agency “failed to provide a preponderance of evidence that [the grievant] is guilty of DWI.”

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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