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22:0607(68)AR
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).