American Federation of Government Employees, Local 1917 (Union) and United States, Department of Justice, Immigration and Naturalization, Service, New York District (Agency)

[ v59 p669 ]

59 FLRA No. 119

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 1917
(Union)

and

UNITED STATES
DEPARTMENT OF JUSTICE,
IMMIGRATION AND NATURALIZATION
SERVICE, NEW YORK DISTRICT
(Agency)

0-AR-3724

_____

DECISION

February 20, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Albert G. Murphy filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied the grievance, which alleged that the grievant's three-day suspension was not for just cause. For the reasons set forth below, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The grievant was suspended for three days for allegedly using profanity towards a co-worker. The Union filed a grievance, which was unresolved and was submitted to arbitration. The Arbitrator framed the relevant issue to be: "Was the three day suspension of [the grievant] for just cause and to promote the efficiency of the Service. If not, what shall the remedy be?" [n1] Award at 1.

      Before the Arbitrator, the grievant noted that the event at issue occurred five years earlier, and he disputed that he used profanity towards a co-worker. The grievant also argued that he was not given the opportunity to make an oral reply. Id. at 6. The Arbitrator found that the grievant used profanity towards a co-worker and that the grievant's use of profanity was proscribed by the Agency's Officer's Handbook ("Handbook"). Accordingly, the Arbitrator denied the grievance. [n2] 

III.      Positions of the Parties

A.     Union's Exceptions

      The Union argues that the award is contrary to law. Specifically, the Union alleges that, under 5 U.S.C. §§ 7513(b)(2) and 7503(b)(2), the grievant was entitled to both a written and an oral reply to the proposed notice of charges against him. [n3] The Union contends that the Agency committed harmful error by denying the grievant a chance to respond to the charges against him. The Union also contends that the parties have a past practice entitling the grievant to make an oral reply to the charges against him.

      The Union further argues that the award is based on a nonfact. Specifically, the Union contends that while the notice of proposed disciplinary action and the award state that the grievant's alleged misconduct occurred at the Downstate Correctional Facility, the grievant never worked at the Downstate Facility and, instead, worked at the Ulster Correctional Facility. The Union contends that, as a result, the grievant could not have engaged in the misconduct alleged in the proposed disciplinary action and found by the Arbitrator in the award.

B.     Agency's Opposition

      The Agency argues that the grievant was not denied due process because he was given the opportunity [ v59 p670 ] to answer the notice of proposed discipline orally, in writing, or both orally and in writing. The Agency also contends that the grievant was given the opportunity to request an extension for his oral reply and to select an attorney or representative to represent him at the oral reply stage, and thus, was given more extensive rights than are required by due process.

      In addition, the Agency disputes the Union's nonfact argument. Specifically, the Agency contends that the grievant's statement to his co-worker -- not the location where the statement was made -- is the central fact underlying the award.

IV.     Analysis and Conclusions

A.     The award is not contrary to law.

      Where a party's exception involves an award's consistency with law, the Authority reviews the question of law raised by the exception and the Arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv., 43 F.3d 682, 686-87 (D.C. Cir. 1994)). Under the de novo standard, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings.

      The Union argues that §§ 7513(b)(2) and 7503(b)(2) entitle the grievant to both a written and an oral reply to the proposed notice of disciplinary action. However, § 7513 relates to serious adverse actions covered by § 7512, such as suspensions for more than 14 days. See Overseas Educ. Ass'n, W. Point Elementary Sch. Teachers, 48 FLRA 213, 219 (1993). As the action at issue here is a three-day suspension, § 7513 does not apply, and the Union's argument is misplaced. The Union's reliance on the harmful error rule is also misplaced because that rule does not apply to suspensions of 14 days or less. See Fed. Bureau of Prisons, Fed. Corr. Inst. for Women, Alderson, W. Va., 41 FLRA 311, 315 (1991).

      With regard to 5 U.S.C. § 7503, that section covers suspensions of 14 days or less. United States Dep't of the Air Force, Okla. City Air Logistics Command, Tinker Air Force Base, Okla., 47 FLRA 776, 781 n.2 (1993). In United States Dep't of Veterans Affairs, Nat'l Mem'l Cemetery of the Pac., 45 FLRA 1164, 1175 (1992), the Authority found that employees subject to actions covered by § 7503 have a right to constitutional due process. Such employees are not due post-suspension proceedings but are entitled to pre-decisional proceedings no more formal or extensive than an oral or written notice of the charges, an explanation of the employer's evidence, and an opportunity for the employee to present his or her side of the story. Id. at 1177; AFGE, Local 1151, 54 FLRA 20, 26-7 (1998) (Local 1151).

      In the present case, the grievant's three-day suspension is an action covered by § 7503. The grievant was given written notice of his proposed suspension, which set forth an explanation of the Agency's evidence against the grievant. See Exceptions, Attachment A at 1 (Notice of Proposed Disciplinary Action). In addition, contrary to the Union's arguments, it is clear that the Agency gave the grievant the opportunity