22:0607(68)AR - Customs Service and NTEU -- 1986 FLRAdec AR
[ v22 p607 ]
The decision of the Authority follows:
22 FLRA No. 68 UNITED STATES CUSTOMS SERVICE Agency and NATIONAL TREASURY EMPLOYEES UNION Union Case No. 0-AR-1015 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on exceptions to the award of Arbitrator Howard V. Finston filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition. II. BACKGROUND AND ARBITRATOR'S AWARD The grievant was suspended for 14 days on charges that he engaged in conduct prejudicial to the Government, as the result of argumentative conversation and subsequent physical confrontation with a member of the public, and that he failed to perform assigned duties in a professional manner, as the result of the use of excessive force by kicking that individual after he had fallen to the ground. A grievance contesting the suspension was filed and ultimately submitted to arbitration where the Arbitrator stated the issue as whether the suspension was for just cause. The Arbitrator determined that the evidence failed to establish that the grievant physically abused the individual involved or acted in a manner clearly inconsistent with agency policy or guidelines. Instead, the Arbitrator determined that the situation reflected a misjudgment by the grievant of the individual's obstinancy and a temporary loss of composure. The Arbitrator also identified two mitigating factors: (1) the grievant's record of no previous disciplinary actions, and (2) the several month delay between the alleged misconduct and the imposition of discipline by the Agency. Accordingly, as his award, the Arbitrator found that the 14-day suspension was not for just cause, reduced the discipline to an oral admonishment, and ordered that the grievant be made whole. III. FIRST EXCEPTION A. Contentions In its first exception the Agency contends that the award is contrary to law because the Arbitrator applied an erroneous standard of review. The Agency maintains that with respect to the serious adverse actions enumerated in 5 U.S.C. Section 7512, /1/ the Merit Systems Protection Board (MSPB) under section 7701 reviews a disciplinary action to determine whether it is arbitrary, capricious, unreasonable, or clearly excessive. The Agency maintains that the Authority should require arbitrators to apply the same standard to suspensions of 14 days or less under 5 U.S.C. chapter 75, subchapter I, and find the award deficient as contrary to management's right to take disciplinary action because the Arbitrator failed to apply such standard. B. Analysis and Conclusions The Authority has repeatedly held that the standards set forth in section 7701, pertaining to the appellate review procedures of MSPB, do not apply to the arbitration of suspensions of 14 days or less. The Authority has explained that under section 7121(e)(2) of the Statute, an arbitrator is governed by the standards set forth in section 7701(c). However, as it pertains to disciplinary actions, section 7121(e)(2) only applies to the more serious adverse actions enumerated in section 7512 and therefore neither that section nor the standards set forth in section 7701(c) apply to suspensions of 14 days or less as in this case. Headquarters, Fort Monroe, Fort Monroe, Virginia and National Association of Government Employees, Local R4-11, 13 FLRA 405 (1983); Naval Weapons Station, Yorktown, Virginia and National Association of Government Employees, Local R4-96, 13 FLRA 133 (1983). Thus, contrary to the Agency's exception, we find that the award is not contrary to law because the Arbitrator failed to apply the standard of review which it asserts is required by Section 7701. Furthermore, consistent with the review of arbitration awards by Federal courts in the private sector, the Authority has uniformly held that unless a specific standard of proof or review is required, an arbitrator may establish whatever standard the arbitrator considers appropriate and the award will not be found deficient on that basis. Social Security Administration and Local 1760, American Federation of Government Employees, AFL-CIO, 17 FLRA 1063 (1985); Department of Defense Dependents Schools, Europe and Overseas Education Association, 4 FLRA 412 (1980). Based on this precedent, we conclude that this exception provides no basis for finding the award deficient. IV. SECOND EXCEPTION A. Contentions In the second exception the Agency contends that the award is inconsistent with the Agency's table of offenses and discipline. The Agency maintains that the table provides for discipline for the first offense of conduct prejudicial to the Government ranging from a 14-day suspension to removal. The Agency argues that the award is therefore deficient by mitigating the range of discipline for such misconduct below that provided by the table. B. Analysis and Conclusions The Authority concludes that this exception does not provide any basis for finding the award deficient. In arguing that the Arbitrator improperly mitigated the range of discipline for conduct prejudicial to the Government, the Agency does not take proper account of the Arbitrator's specific finding in this case. In particular, the Arbitrator found that the evidence failed to establish that the grievant had engaged in any conduct prejudicial to the Government as was charged by the Agency. Thus, apart from any other considerations, the Agency fails to establish that the award is inconsistent with the table of offenses and discipline. V. THIRD EXCEPTION A. Contentions In the third and final exception, the Agency contends that the award is deficient because the Arbitrator improperly mitigated the discipline on grounds of delay. Essentially, the Agency argues that the award is deficient because the Arbitrator failed to make an assertedly required finding that the delay constituted harmful error within the meaning of 5 U.S.C. Section 7701(c). In its opposition the Union first maintains that to the extent that the harmful-error rule might be applied to a suspension of 14 days or less, it is a consideration only when an agency has supported that its disciplinary action is for such cause as will promote the efficiency of the service. In this case the Union argues that the Arbitrator found that the suspension was not for just cause and that therefore the additional finding that there was an unwarranted delay is unnecessary to support the award. However, the Union also states that Article 28, Section 1B of the parties' national collective bargaining agreement provides that "disciplinary action shall be carried out in a prompt and timely manner." Thus, the Union argues that the Arbitrator properly enforced this provision in mitigating the suspension on finding that the Agency failed promptly to impose disciplinary action. B. Analysis and Conclusions In agreement with the Union, the Authority concludes that whether the Agency established that the grievant engaged in the conduct with which he was charged is separate from and independent of any asserted procedural error. It is not clear from the award whether the procedural error of unwarranted delay served to further mitigate the suspension or only to separately support mitigation. Nevertheless, we find that, at a minimum, the award is primarily based on and properly supported by the independent finding of the Arbitrator that the evidence failed to establish that the grievant physically abused the individual involved or acted in a manner clearly inconsistent with agency policy or guidelines. To the extent that the Arbitrator mitigated the suspension on the basis of the failure promptly to impose discipline as required by the parties' agreement, we conclude that no basis is provided for finding the award deficient as alleged by the Agency in this exception. Consistent with the decisions previously cited regarding the standard of review in arbitrations of suspensions of 14 days or less, the Authority likewise has held that the harmful-error rule of section 7701(c) does not apply to the arbitration of such disciplinary actions. As with the standard of review pertaining to disciplinary actions, the rule applies in accordance with section 7121(e)(2) of the Statute only to the more serious adverse actions enumerated in section 7512. American Federation of Government Employees, Local 1760 and Social Security Administration, Northeastern Program Service Center, 22 FLRA No. 19 (1986). On this basis the Authority specifically concluded in Northeastern Program Service Center that the arbitrator was not required by law to find that the violation of the parties' collective bargaining agreement in the process of disciplining the grievant constituted harmful error. Accordingly, the Authority further found that the arbitrator's failure to make such a finding did not provide any basis for finding the award rescinding the 10-day suspension of the grievant contrary to law. We therefore conclude in this case that for the same reasons set forth in Northeastern Program Service Center, the Arbitrator was not required by law to find that the unwarranted delay in imposing discipline constituted harmful error. His failure to make such a finding therefore provides no basis for finding the award contrary to law. VI. DECISION For these reasons the Agency's exceptions are denied. /2/ Issued, Washington, D.C., July 17, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) Section 7512 applies to a removal, a suspension for more than 14 days, a reduction-in-grade, a reduction-in-pay, and a furlough of 30 days or less. (2) In denying the Agency's exceptions, we note that there is no basis for the Authority to grant reasonable attorney fees and costs as requested by the Union. See part 2430 of the Authority's Rules; see also U.S. Army Corps of Engineers and National Federation of Federal Employees, Local 639, 17 FLRA 424 (1985).