22:0607(68)AR - Customs Service and NTEU -- 1986 FLRAdec AR



[ v22 p607 ]
22:0607(68)AR
The decision of the Authority follows:


 22 FLRA No. 68
 
 UNITED STATES CUSTOMS SERVICE
 Agency
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Union
 
                                            Case No. 0-AR-1015
 
                                 DECISION
 
                         I. STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Howard V. Finston filed by the Agency under section 7122(a)
 of the Federal Service Labor-Management Relations Statute and part 2425
 of the Authority's Rules and Regulations.  The Union filed an
 opposition.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievant was suspended for 14 days on charges that he engaged in
 conduct prejudicial to the Government, as the result of argumentative
 conversation and subsequent physical confrontation with a member of the
 public, and that he failed to perform assigned duties in a professional
 manner, as the result of the use of excessive force by kicking that
 individual after he had fallen to the ground.  A grievance contesting
 the suspension was filed and ultimately submitted to arbitration where
 the Arbitrator stated the issue as whether the suspension was for just
 cause.  The Arbitrator determined that the evidence failed to establish
 that the grievant physically abused the individual involved or acted in
 a manner clearly inconsistent with agency policy or guidelines.
 Instead, the Arbitrator determined that the situation reflected a
 misjudgment by the grievant of the individual's obstinancy and a
 temporary loss of composure.  The Arbitrator also identified two
 mitigating factors:  (1) the grievant's record of no previous
 disciplinary actions, and (2) the several month delay between the
 alleged misconduct and the imposition of discipline by the Agency.
 Accordingly, as his award, the Arbitrator found that the 14-day
 suspension was not for just cause, reduced the discipline to an oral
 admonishment, and ordered that the grievant be made whole.
 
                           III.  FIRST EXCEPTION
 
                              A.  Contentions
 
    In its first exception the Agency contends that the award is contrary
 to law because the Arbitrator applied an erroneous standard of review.
 The Agency maintains that with respect to the serious adverse actions
 enumerated in 5 U.S.C. Section 7512, /1/ the Merit Systems Protection
 Board (MSPB) under section 7701 reviews a disciplinary action to
 determine whether it is arbitrary, capricious, unreasonable, or clearly
 excessive.  The Agency maintains that the Authority should require
 arbitrators to apply the same standard to suspensions of 14 days or less
 under 5 U.S.C. chapter 75, subchapter I, and find the award deficient as
 contrary to management's right to take disciplinary action because the
 Arbitrator failed to apply such standard.
 
                       B.  Analysis and Conclusions
 
    The Authority has repeatedly held that the standards set forth in
 section 7701, pertaining to the appellate review procedures of MSPB, do
 not apply to the arbitration of suspensions of 14 days or less.  The
 Authority has explained that under section 7121(e)(2) of the Statute, an
 arbitrator is governed by the standards set forth in section 7701(c).
 However, as it pertains to disciplinary actions, section 7121(e)(2) only
 applies to the more serious adverse actions enumerated in section 7512
 and therefore neither that section nor the standards set forth in
 section 7701(c) apply to suspensions of 14 days or less as in this case.
  Headquarters, Fort Monroe, Fort Monroe, Virginia and National
 Association of Government Employees, Local R4-11, 13 FLRA 405 (1983);
 Naval Weapons Station, Yorktown, Virginia and National Association of
 Government Employees, Local R4-96, 13 FLRA 133 (1983).  Thus, contrary
 to the Agency's exception, we find that the award is not contrary to law
 because the Arbitrator failed to apply the standard of review which it
 asserts is required by Section 7701.
 
    Furthermore, consistent with the review of arbitration awards by
 Federal courts in the private sector, the Authority has uniformly held
 that unless a specific standard of proof or review is required, an
 arbitrator may establish whatever standard the arbitrator considers
 appropriate and the award will not be found deficient on that basis.
 Social Security Administration and Local 1760, American Federation of
 Government Employees, AFL-CIO, 17 FLRA 1063 (1985);  Department of
 Defense Dependents Schools, Europe and Overseas Education Association, 4
 FLRA 412 (1980).  Based on this precedent, we conclude that this
 exception provides no basis for finding the award deficient.
 
                           IV.  SECOND EXCEPTION
 
                              A.  Contentions
 
    In the second exception the Agency contends that the award is
 inconsistent with the Agency's table of offenses and discipline.  The
 Agency maintains that the table provides for discipline for the first
 offense of conduct prejudicial to the Government ranging from a 14-day
 suspension to removal.  The Agency argues that the award is therefore
 deficient by mitigating the range of discipline for such misconduct
 below that provided by the table.
 
                       B.  Analysis and Conclusions
 
    The Authority concludes that this exception does not provide any
 basis for finding the award deficient.  In arguing that the Arbitrator
 improperly mitigated the range of discipline for conduct prejudicial to
 the Government, the Agency does not take proper account of the
 Arbitrator's specific finding in this case.  In particular, the
 Arbitrator found that the evidence failed to establish that the grievant
 had engaged in any conduct prejudicial to the Government as was charged
 by the Agency.  Thus, apart from any other considerations, the Agency
 fails to establish that the award is inconsistent with the table of
 offenses and discipline.
 
                            V.  THIRD EXCEPTION
 
                              A.  Contentions
 
    In the third and final exception, the Agency contends that the award
 is deficient because the Arbitrator improperly mitigated the discipline
 on grounds of delay.  Essentially, the Agency argues that the award is
 deficient because the Arbitrator failed to make an assertedly required
 finding that the delay constituted harmful error within the meaning of 5
 U.S.C. Section 7701(c).
 
    In its opposition the Union first maintains that to the extent that
 the harmful-error rule might be applied to a suspension of 14 days or
 less, it is a consideration only when an agency has supported that its
 disciplinary action is for such cause as will promote the efficiency of
 the service.  In this case the Union argues that the Arbitrator found
 that the suspension was not for just cause and that therefore the
 additional finding that there was an unwarranted delay is unnecessary to
 support the award.  However, the Union also states that Article 28,
 Section 1B of the parties' national collective bargaining agreement
 provides that "disciplinary action shall be carried out in a prompt and
 timely manner." Thus, the Union argues that the Arbitrator properly
 enforced this provision