41:0311(34)AR - - Federal Bureau of Prisons, Federal Correctional Institution for Women, Alderson, WV and AFGE Local 1494 - - 1991 FLRAdec AR - - v41 p311
[ v41 p311 ]
The decision of the Authority follows:
41 FLRA No. 34
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 Stanley H. Sergent. The Arbitrator concluded that a 3-day suspension of the grievant was based on just cause and denied the grievance. The Union filed exceptions 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.
For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
During a dispute between the grievant and a coworker, the grievant cursed the coworker and the coworker struck the grievant. A fight followed and both employees were seriously injured. The Agency suspended the grievant for 3 days for fighting in the workplace, and he filed a grievance. The grievance was not resolved and was submitted to arbitration. The Arbitrator framed the issue as follows:
[W]hether the three day disciplinary suspension which was imposed upon the grievant as a result of his involvement in an altercation with a co-worker is consistent with those standards [under the collective bargaining agreement].
Award at 10.
The Arbitrator determined that although the grievant did not throw the first punch, he shared part of the blame because of the "abusive language and provocative remarks" made to his coworker which "created an atmosphere of hostility . . . ." Id. at 12-13. The Arbitrator rejected the Union's contention that the Agency had based its decision to suspend the grievant on charges that were not mentioned in the letter of proposed discipline. The Arbitrator concluded that although the Agency could have charged the grievant with additional offenses, "the sole basis for the disciplinary action was the grievant's instigation of the fight coupled with his failure to take any action to avoid it." Id. at 14.
The Arbitrator concluded that the grievant was suspended for just cause. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
The Union contends that the Arbitrator's award is "contrary to law, rule, or regulation, including the parties' collective bargaining agreement[.]" Exceptions at 1. Specifically, the Union argues that the Arbitrator's award "upheld charges not specified in the letter of proposed discipline." Id. at 2.
The Union asserts that the Agency's decision to suspend the grievant did not specify the same reasons for the suspension that were in the notice of proposed disciplinary action. The Union contends that Federal Personnel Manual (FPM) chapter 752, subchapter 2, sections 2-3a.(2) and 2-3d.(1); 5 C.F.R. § 752.203(e); and section 1752.1A of the Agency's regulations require that, "in making decisions on proposed disciplinary actions, agencies consider only those reasons given to employees in the notices of proposed action." Id. at 1.(1) The Union also argues that, as Article 3, Section a. of the parties' agreement incorporates these FPM and CFR provisions, the Arbitrator should have determined that the Agency's consideration of additional charges violated the parties' agreement.(2) Finally, the Union asserts that "the Arbitrator made no determination that if these violations did occur, the violations did not constitute harmful error." Id. at 3.
The Agency contends that the Union's exceptions merely disagree with the Arbitrator's factual conclusions and provide no basis for finding the award deficient. The Agency also asserts that it did not commit harmful error.
IV. Analysis and Conclusions
We conclude that the Union's exceptions provide no basis for finding the award deficient.
We reject the Union's contentions that the award is contrary to FPM chapter 752, subchapter 2, sections 2-3a.(2) and 2-3d.(1); 5 C.F.R. § 752-203(e); and DOJ 1752.1A. It is clear from the award that the Arbitrator determined that the Agency did not consider any charges that were not in the notice of suspension in reaching its decision to discipline the grievant. The Arbitrator concluded specifically that although "the grievant could have been charged with additional offenses, the sole basis for the disciplinary action was the grievant's instigation of the fight coupled with his failure to take any action to avoid it." Award at 14. Consequently, there is no basis for concluding that the award is contrary to the above-cited regulations, as incorporated in the collective bargaining agreement.
We also reject the Union's contention that the award is contrary to law because the Arbitrator should have determined whether the Agency committed harmful error in suspending the grievant. The harmful error rule, 5 U.S.C. § 7701(c)(2)(A), 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. 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). The harmful error rule does not apply to other actions, including suspensions of 14 days or less. Accordingly, as the award involves a 3-day suspension, the Union's contention that the award is deficient because the Arbitrator did not consider whether the Agency committed harmful error provides no basis for finding the award deficient.
In our view, the Union's exceptions constitute nothing more than disagreement with the Arbitrator's evaluation of the evidence and an attempt to relitigate the merits of this case before the Authority. See, for example, Social Security Administration and American Federation of Government Employees, Local 1923, 35 FLRA 160, 166 (1990). Accordingly, the Union has not demonstrated that the award is deficient on any grounds set forth in section 7122(a) of the Statute. Therefore, we will deny the Union's exceptions.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. FPM chapter 752, subchapter 2, sections 2-3a.(2) and 2-3d.(1) provide, in pertinent part:
2-3a.(2) The specific reasons for the action include those the agency has relied on to support its proposal for action, but the agency need not include every reason that might have been used to support its action.
2-3d.(1) The written decision must state which reasons are relied on in the decision. A reference to the proposal notice and mention of which reasons are sustained would be sufficient. The regulation requires that agencies consider only those reasons given to employees in notices of proposed action. Introduction of new reasons into the notice of decision could deprive the employees of any chance to answer these additional reasons for action.
5 C.F.R. § 752.203(e) provides, in pertinent part:
(e) Agency decision. In arriving at its written decision, the agency shall consider only the reasons specified in the notice of proposed action . . . .
DOJ 1752.1A provides, in pertinent part:
Chapter 3, section 10, f. Specific Reasons. Official reprimands and notices of proposed adverse action must state the SPECIFIC reasons supporting the reprimand or proposed adverse action.
Attachment to Exceptions identified as Joint Exhibit 8 at 12.
2. Article 3, Section a. of the parties' collective bargaining agreement states in part:
In the administration of all matters covered by this Agreement, officials and employees are governed by existing