41:0237(23)AR - - Justice, Federal Bureau of Prisons, Terre Haute, IN and AFGE Local 720 - - 1991 FLRAdec AR - - v41 p237

[ v41 p237 ]
The decision of the Authority follows:

41 FLRA No. 23














June 18, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Lawrence M. Cohen filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions. The record in this case also includes a supplemental submission filed by the Union and a response to that submission filed by the Agency.

The Arbitrator denied the grievance of an employee who was suspended for 3 days for violating the prison policy requiring officers to obtain permission before entering the cell of a disruptive inmate. For the following reasons, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant is a correctional officer in charge of a unit housing disruptive and violent inmates. In an incident in which an inmate refused to be handcuffed so that his cell could be searched for a pair of headphones, the grievant and two other officers entered the cell, subdued the inmate, and removed him to another cell. After that, the grievant notified the Detention Lieutenant of the incident.

A prison policy requires that cells not be opened and disruptive inmates not be moved prior to notifying the Detention Lieutenant. Because the grievant did not notify the Detention Lieutenant before moving the inmate, the Agency charged the grievant with violating the policy and suspended him for 3 days. The Union filed three grievances on behalf of the grievant, alleging that the discipline taken against him was contrary to the master agreement, the local supplemental agreement and the Federal Personnel Manual (FPM). The grievances were consolidated and submitted to arbitration on the issue of whether the grievant's suspension was for just cause and, if so, what should be the remedy.

The Agency argued that the grievant was aware of the policy requiring notification of the Detention Lieutenant. The Union denied that the grievant was aware of the policy. The Agency asserted that the 3-day suspension was a reasonable penalty for the violation and was consistent with the penalty imposed in a similar case. The Union contended that a lesser penalty was imposed in another similar case and that the grievant should have received a reprimand, at most.

The Arbitrator found that the grievant was aware or should have been aware of the notification policy, which was not a new policy and which was listed in the Post Orders to which the grievant had certified familiarization. The Arbitrator also found that the grievant had violated the notification policy and that he was properly disciplined for that violation.

The Arbitrator next considered whether the 3-day suspension was appropriate under the Agency's schedule of penalties. He ruled that the grievant's offense was a violation of Rule 3 (failure to carry out orders) of the Standard Schedule of Disciplinary Offenses and noted that the penalty for violation of Rule 3 can range from reprimand to termination. The Arbitrator rejected the Union's argument that the only other instance of an offense similar to the grievant's offense resulted in a reprimand of the employee involved and, therefore, the grievant should receive only a reprimand. However, the Arbitrator found that the circumstances surrounding the other incident, including the fact that the other incident involved an emergency and an inmate's safety, were sufficiently distinguishable to justify the lesser penalty imposed on the employee involved. He found that the incident in which the grievant was involved was not an emergency, but rather, resulted from the grievant's anger at the inmate's failure to obey orders.

The Arbitrator rejected the Union's contention that the grievant was discriminated against because he was a Union member. The Arbitrator also rejected the Union's argument that the 3-day suspension of the grievant was not warranted under Merit Systems Protection Board (MSPB) guidelines governing appropriateness of penalties (Douglas factors) set forth in Douglas v. Veterans Administration, 5 MSPR 280 (1981). The Arbitrator found that the Agency had properly considered (1) the nature of the offense, (2) the relation of the offense to the grievant's duties, (3) the grievant's position and responsibilities, (4) the grievant's past disciplinary record, (5) consistency of the penalty imposed with penalties imposed for similar offenses, (6) the grievant's knowledge and notice of the rules he was expected to obey, and (7) the use of alternative forms of punishment.

The Arbitrator accepted the Agency's contention that the grievant's offense was sufficiently serious to warrant the imposition of a 3-day suspension. He denied the grievance.

III. Positions of the Parties

A. The Union

The Union contends that the Arbitrator's award is deficient because it is contrary to law and regulation and because the award is contrary to and improperly modifies the master and local supplemental bargaining agreements. Essentially, the Union asserts that the Arbitrator erred by failing to find that the grievant received disparate treatment as compared to the other employee who committed the same type of offense as the grievant. In a supplemental submission, the Union states that, following settlement of an unfair labor practice charge filed to obtain information concerning the case of the other employee, evidence became available showing that the Arbitrator made an incorrect decision that should be set aside or modified.

The Union argues that because the Agency refused to release the evidence concerning the other incident, the Arbitrator failed to apply the Douglas factors properly and failed to ascertain that the grievant's punishment for opening and entering a cell without first notifying the supervisor as required by prison policy was inconsistent with the punishment given the employee involved in the other incident. In particular, the Union contends that the Arbitrator was not informed that the other employee had a record of past disciplinary offenses compared to the grievant's previously unblemished record. The Union maintains that if the Arbitrator had applied the Douglas factors properly, he would have concluded that the grievant was given a disparate punishment for his offense. The Union asserts that, for this reason, it has demonstrated by substantial evidence that the Arbitrator committed a harmful error under 5 C.F.R. § 1201.56.

Additionally, the Union maintains that the Arbitrator violated and improperly modified the master agreement and the local supplemental agreement by failing to find that the grievant was treated unfairly and inequitably because of the disparity of his punishment with that of the other employee. The Union argues that if the Agency had released the information which the Union requested concerning the other employee in time to present that information to the Arbitrator, the Arbitrator would have reached a different conclusion with regard to the grievant's claim of disparate treatment. The Union contends that the award is also contrary to the requirement of FPM Chapter 751, subchapter 1-2.b and c that disciplinary action be reasonable and that like penalties be imposed for similar offenses.

B. The Agency

The Agency asserts that the Union's supplemental submission should not be considered because the submission contains information which was not included in the exceptions filed with the Authority. The Agency points out that the Union elected to proceed with the arbitration rather than delay the proceeding until the request for information concerning the discipline of the other employee was resolved. Further, the Agency maintains that the information obtained on settlement of the Union's unfair labor practice charge provides no new information and is consistent with the evidence presented at the hearing on the same issue.

The Agency concedes that it did not provide the Union with the complete disciplinary file of the other employee who was disciplined for an offense similar to the one for which the grievant was suspended. However, the Agency states that it did provide the Union with a sanitized list of disciplinary actions taken at the prison, including the action in which the other employee was reprimanded. The Agency contends that the Union used this list as a basis for calling that other employee as a witness and eliciting the information that that employee had a record of past disciplinary actions for other reasons, including a 14-day suspension, a 2-day suspension and a reprimand. The Agency also states that the Union's cross-examination of the prison warden brought forth the testimony regarding the emergency circumstances which caused the other employee to be given a lesser penalty than the grievant for a similar offense.

The Agency asserts that the warden's testimony regarding the reasons for the different punishments imposed on the grievant and on the other employee did not constitute "surprise" testimony detrimental to the Union because that testimony was sought by the Union in its cross-examination of the warden. Opposition at 8. The Agency contends that the Union received a fair hearing because essential witnesses and the grievant were able to testify and because the Union agreed to proceed with the hearing after the Arbitrator refused to order the Agency to produce the material concerning the other disciplined employee.

The Agency states that it agrees with the Union that the Douglas factors and other rules and precedents of the MSPB are applicable to all disciplinary matters taken under 5 U.S.C. § 7502 as well as those taken under section 7512. However, the Agency maintains that even if the Authority holds otherwise, the Union's exceptions in this regard provide no basis for finding the award deficient. The Agency argues that the Arbitrator did apply the Douglas factors to consider the consistency between the grievant's punishment and that of the other employee and asserts that the Union is only disagreeing with the Arbitrator's findings and his weighing of the evidence and is attempting to relitigate the matter before the Authority. The Agency also asserts that the Union is disagreeing with the Arbitrator's factual findings as to the grievant's state of mind when he entered the inmate's cell and as to the state of emergency that existed in the case of the other employee.

IV. Preliminary Matter

As a preliminary matter, we conclude that we will consider the Union's supplemental submission and the Agency's opposition to that submission. By order of November 29, 1990, we granted the Union's request for permission to file a supplemental submission. We also allowed the Agency to file a response to the supplemental submission. The material and arguments contained in the supplemental submission pertain to arguments made by the Union before the Arbitrator. The information relied on by the Union in its supplemental submission was not made available to the Union at the arbitration hearing due to the Agency's refusal to provide it. In these circumstances, we reject the Agency's objection to consideration of the Union's supplemental submission. See U.S. Department of the Navy, Long Beach Naval Shipyard, Long Beach, California and International Federation of Professional and Technical Engineers, Local 174, 37 FLRA 1111, 1112 (1990) (agency's supplemental exception considered where neither party was prejudiced and Union had opportunity to address the supplemental exception).

V. Analysis and Conclusions

We construe the Union's arguments that the award is deficient because the Arbitrator violated and improperly modified the master collective bargaining agreement and the local supplemental agreement as contentions that the award fails to draw its essence from the parties' agreement. To establish that an award is deficient because it does not draw its essence from an agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and purposes of the agreement, as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard to the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Department of Transportation, Maritime Administration, James River Reserve Fleet and National Association of Government Employees, Local R4-47, 35 FLRA 1213, 1216 (1990).

The Union has not demonstrated that the Arbitrator's award is deficient under any of the above tests. Instead, we find that the Union's arguments are an attempt to relitigate the merits of the grievance before the Authority. The Union is merely disagreeing with the Arbitrator's decision upholding the punishment given the grievant based on the serious nature of the grievant's violation of prison policy and with the Arbitrator's decision, based on the testimony of the warden and of the other employee punished for a similar offense, that the circumstances of the grievant's offense warranted the more severe punishment. Disagreement with an arbitrator's evaluation of evidence and findings and conclusions based thereon provides no basis for finding an award deficient. For example, U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1336, 37 FLRA 766, 774 (1990). Accordingly, the Union's exceptions concerning the Arbitrator's alleged violation and improper modification of the master agreement and the local supplemental agreement provide no basis for finding the award deficient and will be denied.

The Union's exception that the award is contrary to FPM chapter 751, subchapters 1-2.b and c, which provide that disciplinary action should be reasonable and like penalties should be imposed for similar offenses, is without merit. Nothing in the Agency's discipline of the grievant or the Arbitrator's award sustaining that discipline has been shown to be unreasonable or arbitrary. The Arbitrator found, based on the testimony and evidence in the record, that the circumstances surrounding the grievant's offense were sufficiently different from the circumstances involving the other employee to warrant the more severe punishment imposed on the grievant. Nothing in the FPM provision relied on by the Union requires the Agency to assign the same punishment for offenses which are similar but which differ in degree based on surrounding circumstances. Therefore, we find that the Union has failed to show that the Arbitrator's award is contrary to FPM chapter 751, subchapters 1-2.b and c and, therefore, the Union's exception will be denied.

Contrary to the Union's and the Agency's assertions, the Arbitrator was not required to consider the Douglas factors enunciated by the MSPB in deciding the matter before him. We have repeatedly held that arbitrators are not bound by the same substantive standards as the MSPB when resolving grievances over actions not covered by 5 U.S.C. §§ 4303 and 7512. For example, American Federation of Government Employees, Council of Prison Locals, Local 1612 and U.S. Department of Justice, Federal Bureau of Prisons, Medical Center for Federal Prisoners, Springfield, Missouri, 40 FLRA 498, 503 (1991). Furthermore, although not required to do so, the Arbitrator did consider the Douglas factors and the application of those factors by the Agency to determine the appropriateness of the penalty assessed and to find that the 3-day suspension was warranted under the Douglas factors. The Union's exception concerning the Douglas factors provides no basis for finding the award deficient.

With regard to the Union's contentions regarding harmful error on the part of the Arbitrator, we have held that the harmful error rule contained in 5 U.S.C. § 7701(c) and 5 C.F.R. § 1201.56 applies to an arbitrator's resolution of a grievance over performance-based and other major adverse actions covered by 5 U.S.C. §§ 4303 and 7512, respectively. The harmful error rule does not apply to other disciplinary actions, including suspensions of 14 days or less. See U.S. Department of Justice, Federal Bureau of Prisons, Terre Haute, Indiana and American Federation of Government Employees, Council of Prison Locals, Local 720, 38 FLRA 1438, 1441 (1991). Accordingly, as the award in this case involves a 3-day suspension, the Union's contention that the award violates 5 U.S.C. § 7701(c) and 5 C.F.R. § 1201.56 provides no basis for finding the award deficient.

Finally, we reject the Union's contention that the award is contrary to law because the Union was prejudiced by the Agency's refusal to release the full disciplinary file of the other employee who committed a similar offense but received a lesser punishment than the grievant. Although not stated in those terms, the Union's contentions in this regard can be construed as contentions that the Union was denied a fair hearing by the Arbitrator. The Authority will find an arbitration award deficient if it is established that the arbitrator failed to conduct a fair hearing by, for example, refusing to hear pertinent and material evidence. See, for example, U.S. Department of the Air Force, Hill Air Force Base, Utah