27:0648(74)AR - NTEU and Customs Service, Pacific Region -- 1987 FLRAdec AR

[ v27 p648 ]
The decision of the Authority follows:

 27 FLRA No. 74
                                            Case No. 0-AR-1326
                         I.  Statement of the Case
    This matter is before the Authority on an exception to the award of
 Arbitrator Sara Adler filed by the Activity under section 7122(a) of the
 Federal Service Labor-Management Relations Statute (the Statute) and
 part 2425 of the Authority's Rules and Regulations.
                  II.  Background and Arbitrator's Award
    The grievant was suspended for 14 days based on three separate
 incidents:  (1) sleeping on duty;  (2) refusing to accept a 3-month
 detail because of personal hardship;  and, (3) giving improper advice to
 his supervisor's secretary.  A grievance was filed contesting the
 suspension and the matter was submitted to arbitration.
    The Arbitrator found as to the first incident that because the
 alleged sleeping on duty occurred 5 months before the discipline was
 imposed and there was no recurrence, it was clearly an isolated incident
 and the facts, "considered in their totality," were too weak to support
 a suspension.  The Arbitrator found as to the second incident that
 although the Activity had a right not to take personal hardship into
 account in details, the Agency had allowed another officer to be excused
 from a similar detail because of personal hardship.  The Arbitrator
 determined that the Activity had not considered the claims in an
 evenhanded manner or used a clearly articulated standard.  The
 Arbitrator concluded that the grievant's refusal of the detail did not
 constitute misconduct and did not provide a basis for discipline.  The
 Arbitrator found as to the third incident that based on the evidence
 before her, the advice given by the grievant to the supervisor's
 secretary was not improper or prohibited.  The Arbitrator concluded that
 the single incident of sleeping on duty was insufficient to support a
 14-day suspension and as her award, reduced the penalty to an oral
 counselling, confirmed in writing.
                             III.  Discussion
    The Activity contends that the Arbitrator's award reducing the
 discipline imposed is contrary to law because it is an improper
 mitigation of the penalty.
    We conclude that the Activity has failed to establish that the
 Arbitrator's award is deficient on any of the grounds set forth in
 section 7122(a) of the Statute;  that is, that the award is contrary to
 any law, rule or regulation or that the award is deficient on other
 grounds similar to those applied by Federal courts in private sector
 labor-management relations.  For example, Federal Correctional
 Institution, Petersburg, Virginia and American Federation of Government
 Employees, Local 2052, Petersburg, Virginia, 13 FLRA 108 (1983)
 (exceptions that constitute nothing more than an attempt to relitigate
 the merits of a dispute before the Authority and disagreement with an
 arbitrator's reasoning and conclusions and interpretation of a
 negotiated agreement provide no basis for finding an award deficient);
 Portsmouth Naval Shipyard and Federal Employees Metal Trades Council,
 AFL-CIO, 5 FLRA 230 (1981) (an arbitrator properly may determine that
 all or part of a disciplinary penalty was not for just cause as required
 by a negotiated agreement and may set aside or reduce the penalty).
 Accordingly, the Activity's exception is denied.
    Issued, Washington, D.C., June 24, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY