27:0648(74)AR - NTEU and Customs Service, Pacific Region -- 1987 FLRAdec AR
[ v27 p648 ]
The decision of the Authority follows:
27 FLRA No. 74 NATIONAL TREASURY EMPLOYEES UNION Union and UNITED STATES CUSTOMS SERVICE, PACIFIC REGION Activity Case No. 0-AR-1326 DECISION I. Statement of the Case This matter is before the Authority on an exception to the award of Arbitrator Sara Adler filed by the Activity under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. II. Background and Arbitrator's Award The grievant was suspended for 14 days based on three separate incidents: (1) sleeping on duty; (2) refusing to accept a 3-month detail because of personal hardship; and, (3) giving improper advice to his supervisor's secretary. A grievance was filed contesting the suspension and the matter was submitted to arbitration. The Arbitrator found as to the first incident that because the alleged sleeping on duty occurred 5 months before the discipline was imposed and there was no recurrence, it was clearly an isolated incident and the facts, "considered in their totality," were too weak to support a suspension. The Arbitrator found as to the second incident that although the Activity had a right not to take personal hardship into account in details, the Agency had allowed another officer to be excused from a similar detail because of personal hardship. The Arbitrator determined that the Activity had not considered the claims in an evenhanded manner or used a clearly articulated standard. The Arbitrator concluded that the grievant's refusal of the detail did not constitute misconduct and did not provide a basis for discipline. The Arbitrator found as to the third incident that based on the evidence before her, the advice given by the grievant to the supervisor's secretary was not improper or prohibited. The Arbitrator concluded that the single incident of sleeping on duty was insufficient to support a 14-day suspension and as her award, reduced the penalty to an oral counselling, confirmed in writing. III. Discussion The Activity contends that the Arbitrator's award reducing the discipline imposed is contrary to law because it is an improper mitigation of the penalty.