22:0602(66)AR - SSA and AFGE Local 1923 -- 1986 FLRAdec AR



[ v22 p602 ]
22:0602(66)AR
The decision of the Authority follows:


 22 FLRA No. 66
 
 SOCIAL SECURITY ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1923
 Union
 
                                            Case No. 0-AR-1112
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Robert H. Mount 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.
 /1/
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    A grievance was filed and submitted to arbitration claiming, among
 other things, that the 14-day suspension of the grievant could not be
 upheld because the records used as a basis for the suspension were not
 placed in a particular personnel file as required by the parties'
 collective bargaining agreement.  The Arbitrator agreed.  He concluded
 that the suspension could not be upheld because the summary of the
 investigation had not been placed in the proper personnel file prior to
 the proposed suspension as required by the agreement.  For this reason
 the Arbitrator sustained the grievance, overturned the suspension, and
 ordered that the grievant be made whole.
 
                              III.  EXCEPTION
 
    In its exception the Agency contends that the award is contrary to
 section 7121(e)(2) of the Statute and 5 U.S.C. Section 7701(c) as
 interpreted by the U.S. Supreme Court in Cornelius v. Nutt, 105 S. Ct.
 2882 (1985).  Essentially, the Agency argues that the award is deficient
 because the Arbitrator failed to make the finding that the violation of
 the agreement constituted "harmful error" within the meaning of section
 7701(c).
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    In American Federation of Government Employees, Local 1760 and Social
 Security Administration, Northeastern Program Service Center, 22 FLRA
 No. 19 (1986), the Authority was presented with a virtually identical
 case involving the same Agency and the same provision of the parties'
 national collective bargaining agreement.  In Northeastern Program
 Service Center the arbitrator determined that the activity had violated
 the same requirement of the parties' collective bargaining agreement by
 failing to place all records relied on for the 10-day suspension of the
 grievant in the proper file, and the arbitrator for that reason directed
 that the suspension be rescinded and the grievant be made whole.  As in
 this case, the Agency filed exceptions to that award contending, among
 other things, that the award was deficient because the arbitrator failed
 to make the finding that the violation of the agreement constituted
 harmful error.  In rejecting this argument, the Authority explained the
 proper application of the harmful-error rule as it pertains to the
 arbitration of disciplinary actions.  The Authority explained that the
 rule applies in accordance with section 7121(e)(2) of the Statute only
 to the more serious adverse actions enumerated in 5 U.S.C. Section 7512
 /2/ that are taken under section 7513;  the rule does not apply to
 suspensions for 14 days or less.  In Northeastern Program Service Center
 the Authority therefore concluded that the arbitrator was not required
 by law to find that the violation of the parties' agreement constituted
 harmful error and that his failure to do so provided no basis for
 finding the award contrary to law as alleged by the Agency.
 
    In this case, the Authority concludes for the same reasons set forth
 in Northeastern Program Service Center that the Arbitrator likewise was
 not required by law to find that the violation of the parties' agreement
 constituted harmful error and that his failure to do so likewise
 provides no basis for finding the award contrary to law.
 
                               V.  DECISION
 
    Accordingly, the Agency's exception is denied.  Issued, Washington,
 D.C., July 17, 1986.
                                       /s/ J