48:0908(96)AR - - Justice, Federal Bureau of Prisons, Federal Correctional Institution, Ashland, KY and AFGE, Local 1286 - - 1993 FLRAdec AR - - v48 p908
[ v48 p908 ]
The decision of the Authority follows:
48 FLRA No. 96
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
COUNCIL OF PRISON LOCALS
November 19, 1993
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 filed by the Agency 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 Union filed an opposition to the Agency's exceptions.
The Arbitrator reduced the grievant's 14-day suspension to a written reprimand and directed the Agency to reimburse him for pay and benefits lost because of the suspension. For the following reasons, we conclude that the Agency fails to establish that the award is deficient. Accordingly, we will deny the Agency's exceptions.
II. Background and Arbitrator's Award
After the grievant, an auto body instructor, admitted to an Agency investigator that he had divulged confidential information concerning an inmate, he received a 14-day suspension. When the grievance over the suspension was not resolved, it was submitted to arbitration. According to the Arbitrator, the parties stipulated that the issue was:
whether the disciplinary action that was taken against the grievant was for just and sufficient cause and, if not, what is the appropriate remedy[?]
Award at 14.
Initially, the Arbitrator found that there was "no doubt" that the grievant, "at least in a technical sense," violated an Agency policy prohibiting unauthorized disclosure of official information. Id. at 15. However, the Arbitrator determined that the grievant's misconduct did not warrant a 14-day suspension. The Arbitrator characterized the misconduct as "relatively innocuous" because the grievant "merely passed on information to his wife that he had obtained through rumor, rather than by probing into an inmate's confidential records and then making that information public." Id. at 15, 16. The Arbitrator found that, "contrary to the express requirement of the Agency's disciplinary procedure," management failed to justify its basis for imposing on the grievant "a penalty substantially more severe than that which was called for" under the Agency's schedule of disciplinary offenses and penalties.(1) Id. at 17.
The Arbitrator also found that management's handling and processing of the disciplinary action was flawed by "'harmful error' in several critical respects." Id. at 18. In the Arbitrator's judgment, "if a thorough investigation had been conducted at the outset it would have revealed that the grievant's misconduct [was] more aptly described as a benign or inadvertent passing on of rumors than an intentional dissemination of official information about an inmate for improper purposes." Id. In addition, the Arbitrator noted that management's investigator did not advise the grievant of the severity of the charges against him or of his right to Union representation during questioning. The Arbitrator stated that, if the grievant had been so advised, "a strong possibility exists that . . . some of the exculpatory facts, such as the innocent nature of the grievant's mistake could have been developed prior to the decision with respect to his punishment." Id. at 19 (footnote omitted). The Arbitrator also determined that the grievant's supervisor's minimal involvement in the disciplinary process denied the grievant "all of the procedural protections to which he [was] entitled under the contract and under the law," and that the disputed suspension failed to promote "the efficiency of the service . . . ." Id. at 16.
The Arbitrator concluded that "at worst a written reprimand should have sufficed to correct the grievant's mistake and put him on notice regarding his duty to safeguard and maintain the confidentiality of information he receive[d] concerning inmates . . . ." Id. at 20. Accordingly, as his award, the Arbitrator ordered the Agency to rescind the disputed suspension and reimburse the grievant for lost earnings and other benefits. However, "in recognition of the fact that the grievant did unwittingly engage in a minor transgression," the Arbitrator authorized the Agency, at its discretion, to substitute "a written reprimand for the unauthorized dissemination of official information." Id.
III. Positions of the Parties
The Agency asserts that the award is inconsistent with management's right to suspend employees under section 7106(a)(2)(A) of the Statute because it prevents management from reimposing a suspension after correcting the cited procedural errors.(2) The Agency also asserts that the award must be set aside because, in the Agency's view, "the Authority is required to set aside or modify the award if it finds that the [A]rbitrator's interpretation and application of any negotiated provision 'affect[ed] the authority of' the [Agency's] managers to 'suspend' the grievant as provided by 5 U.S.C. § 7106(a)(2)(A)." Exceptions at 29 (emphasis in original). In addition, the Agency contends that the Arbitrator erred when he applied the harmful error rule set forth in 5 U.S.C. § 7701(c)(2)(A) in setting aside the grievant's 14-day suspension.
The Agency also contends that the award fails to draw its essence from the parties' agreement. The Agency asserts that "there is no provision in the parties' agreement that requires management to conduct any investigation . . . before proposing adverse or disciplinary action, not to mention requiring an investigation by the disciplined employee's own supervisor." Id. at 18 (emphasis in original). The Agency also asserts that there is no requirement in the agreement for management's investigator to inform a grievant of a right to Union representation or of the severity of the charge against him and that the Agency's table of offenses is not part of the parties' agreement.
Finally, according to the Agency, "the deciding official's alleged lack of knowledge of possible mitigating factors was the central fact" leading to the Arbitrator's conclusion that the penalty was excessive. Id. at 39. The Agency contends that, contrary to the Arbitrator's conclusion, the grievant and his Union representative presented all relevant facts to the deciding official before the 14-day suspension was imposed.
The Union contends that the Agency has failed to establish that the award is contrary to law. In the Union's view, the Agency "is merely disagreeing with the factual findings and conclusions of the Arbitrator." Opposition at 2. Further, the Union asserts that the award draws its essence from the parties' agreement and that "[n]o portion of the award is based on non-fact." Id.
IV. Analysis and Conclusions
A. Award Is Not Contrary to Law
We reject the Agency's argument that the award is deficient because the Arbitrator erred in applying the harmful error rule set forth in 5 U.S.C. § 7701(c)(2)(A). Where discipline involves suspensions for 14 days or less, arbitrators are not required to apply the standards prescribed in section 7701, including the harmful error rule. However, neither judicial nor Authority precedent precludes arbitrators from applying those standards. See U.S. Department of the Air Force, Oklahoma City Air Logistics Command, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 47 FLRA 776, 779 (1993).
We also reject the Agency's contention that the award is deficient because it interferes with management's right to suspend employees under section 7106(a)(2)(A) of the Statute. It is well established that an arbitrator has the authority to determine that all or part of a disciplinary penalty is not imposed for just cause and to set aside or reduce the penalty. Specifically