22:0643(70)AR - INS and AFGE Local 505 -- 1986 FLRAdec AR

[ v22 p643 ]
The decision of the Authority follows:

 22 FLRA No. 70
                                            Case No. 0-AR-963
                         I.  STATEMENT OF THE CASE
    This matter is before the Authority on exceptions to the award of
 Arbitrator C. Chester Brisco 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 grievant was suspended for 5 days for improper use of a firearm,
 unsafe use of a service vehicle, and failure to follow service
 instructions and regulations.  A grievance was filed and submitted to
 arbitration on the issue of whether the suspension was for just and
 sufficient cause.  The Arbitrator determined that the evidence
 established that the grievant engaged in the misconduct with which he
 was charged.  However, the Arbitrator noted that the Agency had delayed
 more than eight months from the date of the incident before proposing
 the grievant's suspension.  He concluded that this "extraordinary delay"
 resulted in a disciplinary action which was arbitrary, capricious, and
 unreasonable and which did not promote the efficiency of the service.
 He further noted that agency regulations require that discipline must be
 timely;  that the collective bargaining agreement provides that
 employees shall be furnished with notices of proposed disciplinary
 action at the earliest practicable date after the alleged offense has
 been committed and made known to the Agency;  and that 5 U.S.C. Section
 7503 directs that the employee is entitled to a written decision and the
 specific reasons for the discipline at the earliest practicable date.
 Rejecting the Agency's argument that the delay was excusable, the
 Arbitrator found that the delay violated law, agency regulation, and the
 collective bargaining agreement and that therefore the delay constituted
 harmful error and the discipline was contrary to law.  As his award the
 Arbitrator ruled that the suspension was not for just cause and directed
 that the grievant be made whole.
                           III.  FIRST EXCEPTION
                              A.  Contentions
    In its first exception the Agency contends that the award is contrary
 to 5 U.S.C. Sections 7503 and 7701(c) and the Back Pay Act, 5 U.S.C.
 Section 5596.  In support of its exception, the Agency essentially
 argues that the Arbitrator's award is deficient because the delay was
 not a harmful error within the meaning of section 7701(c) which the
 Agency maintains should be applied to suspensions of 14 days or less
 taken under section 7503.
                       B.  Analysis and Conclusions
    In American Federation of Government Employees, Local 1760 and Social
 Security Administration, Northeastern Program Service Center, 22 FLRA
 No. 19 (1986), exceptions were filed to an award rescinding a 10-day
 suspension.  The suspension was rescinded because the arbitrator
 determined that the activity violated a requirement of the collective
 bargaining agreement by failing to place all records relied on for the
 suspension in a particular personnel file.  In one of its exceptions,
 the agency contended that the award was deficient because the arbitrator
 failed to find that the violation of the agreement constituted harmful
 error.  In denying this exception, the Authority explained the proper
 application of the harmful error rule of section 7701(c) 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 /*/ that are taken under section 7513;  the rule does not
 apply to suspensions for 14 days or less taken under section 7503.  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.
    Consistent with Northeastern Program Service Center, we conclude in
 this case that the Arbitrator was not required by law to find that the
 unwarranted delay in proposing disciplinary action constituted harmful
 error within the meaning of section 7701(c).  Accordingly, the Agency's
 allegation that the Arbitrator failed to properly make such a finding
 provides no basis for finding the award contrary to law as alleged by
 the Agency.
                           IV.  SECOND EXCEPTION
                              A.  Contentions
    In its second and final exception the Agency contends that the award
 is contrary to management's right in accordance with section
 7106(a)(2)(A) of the Statute to take disciplinary action.  In support of
 this exception, the Agency cites the Authority's decision in National
 Federation of Federal Employees, Local 615 and National Park Service,
 Sequoia and Kings Canyon National Parks, U.S. Department of the
 Interior, 17 FLRA 318 (1985), petition for review filed sub nom. NFFE
 Local 615 v. FLRA, No. 85-1299 (D.C. Cir. May 15, 1985), and argues that
 the arbitrator's setting aside of the grievant's suspension merely
 because of the lapse of time between the act of misconduct and the
 imposition of the suspension violates section 7106(a)(2)(A).
                       B.  Analysis and Conclusions
    The Authority concludes that the Agency's reliance on Sequoia and
 Kings Canyon National Parks is misplaced.  In that case, as correctly
 noted by the Agency, provision 2 essentially provided that
 investigations of incidents for which disciplinary action may be taken
 will normally be initiated within 60 days after the incident.  The
 Authority characterized the provision as establishing a contractual
 "statute of limitations" on the agency's ability to investigate such
 incidents.  17 FLRA at 321.  Recognizing that in many situations
 investigations are the essential first step to disciplinary action, the
 Authority concluded that preventing the initiation of an investigation
 would in certain circumstances prevent the agency from acting at all
 with respect to the right to take disciplinary action.  In this case,
 the Agency was in no manner prevented by a statute of limitations
 provision from investigating the alleged incident of misconduct and from
 acting to propose and suspend the grievant for 5 days.  Instead, as
 stated by the Arbitrator, this case involves review of final
 disciplinary action to determine whether the Agency's eight-month delay