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34:0712(123)AR - - Air Force, Griffiss AFB and AFGE Local 2612 - - 1990 FLRAdec AR - - v34 p712

[ v34 p712 ]
The decision of the Authority follows:

34 FLRA No. 123







LOCAL 2612



February 2, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Margery Gootnick. The Arbitrator denied the grievance over the grievant's 10-day suspension.

The American Federation of Government Employees, Local 2612 (the Union) filed an exception 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 Department of the Air Force (the Agency) filed an opposition to the Union's exception on behalf of Griffiss Air Force Base (the Activity).

For the reasons discussed below, we conclude that the Union's exception provides no basis for finding the award deficient. Accordingly, we will deny the Union's exception.

II. Background and Arbitrator's Award

In October 1987, a telephone call was made to the Activity, and an inappropriate message relating to the grievant's supervisor and another employee was left on the telephone answering machine. The Activity charged the grievant with having left the message and suspended him for 10 days for making a malicious statement against his supervisor and another employee. A grievance was filed over the suspension.

The grievance was submitted to arbitration on the stipulated issues of whether management: (1) had just cause to suspend the grievant; and (2) had committed harmful error by denying the grievant's request for an extension of time to respond to the proposed suspension.

The Arbitrator found that the Activity had established that the voice on the answering machine tape was the grievant's voice. She concluded that the 10-day suspension of the grievant was for cause and promoted the efficiency of the service.

The Arbitrator also concluded that management did not commit a harmful error by not granting the grievant's request for an extension of time to respond to the proposed suspension. The Arbitrator noted that the notice of proposed suspension dated January 11, 1988, gave the grievant 10 calendar days from the date of receipt to reply. On January 15, the Union requested, on behalf of the grievant, an extension until February 26. Management granted an extension until January 28. The Arbitrator found that the reasons given for the requested extension to February 26 were not compelling. She determined that the Activity had provided the grievant a reasonable period of time to furnish evidence as required by Air Force Regulation 40-750.

The Arbitrator also determined that the grievant was not prejudiced by the denial of an extension to February 26. She noted that the notice of decision suspending the grievant for 10 days was issued on February 22. The Arbitrator found that, even if management had granted the extension until February 26, the decision on the grievant's suspension would not have been different from the decision issued on February 22.

Accordingly, the Arbitrator denied the grievance.

III. Positions of the Parties

The Union contends that the award is contrary to law because the Arbitrator erred in failing to find that management committed "harmful error." Union's Exception at 1. The Union argues that "[b]y Management not cooperating with the Union's request for analysis of the tape and not allowing the extension of time as originally requested, Management caused substantial prejudice to the Grievant's individual rights by possibly affecting the Agency's decision." Id. at 3. In support of its claim that management committed "harmful error," the Union cites Cornelius v. Nutt, 472 U.S. 648 (1985).

The Agency contends that the Union's exception constitutes nothing more than disagreement with the Arbitrator's findings. The Agency also contends that the Union's reliance on the harmful-error rule is misplaced. The Agency maintains that the harmful-error rule does not apply to suspensions of 14 days or less.

IV. Discussion

We conclude that the Union's exception fails to establish that the award is contrary to law.

In Cornelius v. Nutt, the U.S. Supreme Court held that if a disciplinary action covered by 5 U.S.C. § 7512 or a performance-based action covered by 5 U.S.C. § 4303 is grieved under a negotiated grievance procedure, an arbitrator must apply the same substantive standards, including the harmful-error rule, of 5 U.S.C. § 7701(c) as would have been applied if the matter had been appealed to the Merit Systems Protection Board (MSPB). The harmful-error rule provides that the agency's decision on the adverse action or performance-based action may not be sustained if harmful error is shown in the application of the agency's procedures in arriving at the decision. Although the harmful-error rule applies to disciplinary actions covered by 5 U.S.C. § 7512, including suspensions of more than 14 days, the rule does not apply to suspensions of 14 days or less covered by 5 U.S.C. § 7502. By its own terms, 5 U.S.C. § 7701(c) pertains exclusively to the appellate procedures of the MSPB. The provisions of 5 U.S.C. § 7701(c), including the harmful-error rule, apply to arbitration solely as a result of the terms of section 7121(e)(2) of the Statute. Section 7121(e)(2) provides that in matters covered under 5 U.S.C. § 4303 and § 7512 that have been raised under the negotiated grievance procedure, rather than the appellate procedures of 5 U.S.C. § 7701, the arbitrator shall be governed by 5 U.S.C. § 7701(c)(1), which the Supreme Court held incorporates the provisions of subsection (c)(2), including the harmful-error rule. Cornelius v. Nutt, 472 U.S. at 652 & n.3. Consequently, the Authority has uniformly rejected arguments that the provisions of 5 U.S.C. § 7701(c) apply to resolutions by arbitrators of grievances over lesser disciplinary actions that are not covered by 5 U.S.C. § 7512. For example,

United States Customs Service and National Treasury Employees Union, 22 FLRA 607 (1986).

Because this case involves a 10-day suspension, the harmful-error rule does not apply. Therefore, the Arbitrator's failure to find that the Activity committed harmful error provides no basis for finding that the award is contrary to law, and we will deny the exception.

V. Decision

The Union's exception is denied.

(If blank, the decision does not have footnotes.)