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28 FLRA NO. 39

NATIONAL TREASURY
EMPLOYEES UNION

                  Union

      and

U.S. CUSTOMS SERVICE
NORTHEAST REGION

                  Activity

Case No. O-AR-1357

DECISION

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Edward C. Pinkus filed by the Activity under section 7122(a) of the Federal Service Labor - Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

II. Background and Arbitrator's Award

The grievant was suspended for 5 days for fighting with another employee while on duty. The parties stipulated the issue for resolution as whether the suspension of the grievant "promotes the efficiency of the Service."

The Arbitrator credited the grievant's testimony and found that the record established that the grievant was acting in self-defense. Accordingly, as his award, he ruled that the suspension of the grievant did not promote the efficiency of the Service.

III. Discussion

The Activity contends that the award is deficient on two grounds. First, the Activity argues that the award is contrary to applicable decisions of the Merit Systems Protection Board and the courts because, under the principles enunciated in those decisions, the Arbitrator could only reduce the discipline imposed if he found that in imposing the discipline the Activity had acted in an arbitrary or capricious manner. Second, the Activity argues that the Arbitrator failed to properly credit the testimony of management's witnesses at the arbitration hearing.

We conclude that the Activity has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule or regulation or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. For example, U.S. International Trade Commission, Washington, D.C. and American Federation of Government Employees, Local 2211, AFL - CIO, 13 FLRA 440 (1983) (exceptions that constitute nothing more than disagreement with an arbitrator's evaluation of the evidence and testimony do not provide a basis for finding an award deficient); Portsmouth Naval Shipyard and Federal Employees Metal Trades Council, AFL - CIO, 5 FLRA 230 (1981) (an arbitrator properly may determine that all or part of a disciplinary penalty was not for just cause as required by a negotiated agreement and may set aside or reduce the penalty). Accordingly, the Activity's exception is denied.

Issued, Washington, D.C., July 29, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

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