36:0928(87)AR - - Justice, INS, Jacksonville, FL and AFGE, National Border Patrol Council Local 3725 - - 1990 FLRAdec AR - - v36 p928



[ v36 p928 ]
36:0928(87)AR
The decision of the Authority follows:


36 FLRA No. 87

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

JACKSONVILLE, FLORIDA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL BORDER PATROL COUNCIL LOCAL 3725

(Union)

0-AR-1857

DECISION

August 31, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Dorothy Cowser Yancy. The issue before the Arbitrator was whether the grievant's 5-day suspension was for just cause. The Arbitrator concluded that the 5-day suspension was excessive, and reduced the discipline to a Formal Warning.

The Agency filed exceptions 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.

For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient under section 7122(a) of the Statute. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

On June 27, 1988, the grievant, a border patrol agent, was involved in an accident while parking a Government vehicle. As a result of the accident, the grievant received a 5-day suspension for "Negligent Operation of a Government Vehicle." Award at 5. A grievance was filed over the suspension and when it was not resolved, it was submitted to arbitration.

The Arbitrator stated the issue as follows:

Was the disciplinary action against the grievant, . . . taken for just and sufficient cause and only for such reasons as will promote the efficiency of the service according to Article 31 Section F (1), and if not, what shall the remedy be?

Id. at 6.

The Arbitrator determined that, to decide this case, she had to determine: (1) whether the grievant's action constituted negligence and had an impact on the efficiency of the service, and (2) whether the penalty was appropriate. The Arbitrator concluded that the grievant's action was negligent because he "did not 'use such care as a reasonable prudent and careful person would use under similar circumstances.'" Id. 9 (quoting Black's Law Dictionary). The Arbitrator also concluded, however, that consistent with Article 31, Section F(1) of the parties' collective bargaining agreement, "the evidence presented at the hearing was not sufficient to support the Agency's claim that the efficiency of the service was impacted." Id. at 10.

Finally, in addressing whether the discipline was appropriate, the Arbitrator noted that although the record indicated that the grievant had been involved in another automobile accident on March 16, 1988, an oral admonishment was not given to the grievant after the first accident. Accordingly, the Arbitrator concluded that the prior event should not have been considered in the instant case.

According to the Arbitrator, the Agency's table of penalties indicated that for a first offense for the Negligent Operation of a Government Vehicle, an employee could receive discipline varying from an "official reprimand to removal." Id. at 11. The Arbitrator noted that "[t]he Agency has made it clear that in three cases where employees were determined to be negligent in their first automobile accidents they each received official written warnings." Id. The Arbitrator stated that she would expect, "in light of consistency and fairness, that the grievant would have received the same discipline considering the fact that he was never orally admonished or given any reason to believe that he was at fault in the first incident." Id. The Arbitrator also stated that because the Agency has a policy of progressive discipline, the expectation was that "the first formal disciplinary step that the Agency would take would be an Official Reprimand if it intended to keep discipline consistent." Id.

The Arbitrator concluded that the 5-day suspension was excessive and arbitrary. Id. As her award, the Arbitrator ordered that the suspension be changed to a "Formal Warning" and be removed from the grievant's record, and that the grievant receive back pay for the suspension. Id. at 12.

III.Agency's Exceptions

As its first exception, the Agency argues that the Arbitrator's award is inconsistent with management's right to discipline under section 7106(a)(2)(A) of the Statute because the Arbitrator imposed a penalty less serious than a reprimand. The Agency asserts that "in mitigating [the penalty] to a 'formal warning' the arbitrator effectively rewrote the agency's table of penalties to change the range of penalties appropriate for this offense from 'reprimand to removal' to formal warning to removal.'" Agency's Exceptions at 3. The Agency notes that "[i]t appears as if the arbitrator was using the terms 'official warning' and 'reprimand' synonymously." Id. at 4. The Agency asserts, however, that it is possible that the Arbitrator did intend to impose something less than a reprimand.

As its second exception, the Agency asserts that the Arbitrator improperly mitigated the penalty. In particular, the Agency asserts that the Arbitrator: (1) improperly applied the "efficiency of the service" standard, and (2) improperly analyzed the issue of whether the grievant was treated disparately from other employees disciplined for the same or similar offenses. The Agency argues that arbitrators must "apply the same substantive law to disciplinary cases as the Merit Systems Protection Board applies." Id. at 5. The Agency asserts that "because [the Arbitrator] required more than it is required under Board case law by her improper formulation of these issues, the arbitrator interfered with management's right to discipline." Id. at 5-6.

With respect to efficiency of the service, the Agency asserts that the Arbitrator's interpretation of the parties' agreement "as requiring a consideration of the impact of the misconduct on the efficiency of the service," constitutes a "nonnegotiable infringement on management's right to discipline." Id. at 7. The Agency asserts that "[t]he way the contractual efficiency of the service standard must be interpreted so as to be consistent with management's right to discipline is whether the discipline will promote the efficiency of the service, not whether the misconduct 'impacted' the efficiency of the service." Id.

With respect to the issue of disparate treatment, the Agency concedes that, consistent with Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), the Arbitrator could examine whether the grievant had been treated consistently with other employees who had committed the same or similar offenses. The Agency argues, however, that "[j]ust because the agency had imposed the minimum allowable penalty in the past did not require it to do so with respect to this grievant particularly considering that he had, undisputedly, been involved in an earlier accident[.]" Id. at 8-9. According to the Agency, the standard as applied by the Arbitrator is inconsistent with the standard applied by the U.S. Court of Appeals for the Federal Circuit in Facer v. Department of the Air Force, 836 F.2d 535 (Fed. Cir. 1988).

The Agency requests that the award be remanded to the Arbitrator in order for her to determine "whether the agency's imposition of a 5-day suspension was for the efficiency of the service[.]" Id. at 10. The Agency also requests that "[i]f the arbitrator still believes . . . that a 5-day suspension is too harsh, she should be instructed to mitigate it to no less than a reprimand[.]" Id. at 10.

IV.Union's Opposition

The Union asserts that the Arbitrator used the terms "official warning" and "reprimand" synonymously. Union's Opposition at 3. The Union notes that if the Arbitrator had intended to "impose something less than an 'Official Reprimand' she would have so stated." Id. at 4.

The Union also asserts that the Agency's contention that the Arbitrator was bound by the same substantive law as the Merit Systems Protection Board (MSPB) is misplaced. The Union argues that the standards in 5 U.S.C. § 7701 do not apply to suspensions of 14 days or less. Id. at 5. The Union notes, in this regard, that it is unnecessary to address the issue of disparate treatment because the MSPB standards are not applicable to suspensions of 14 days or less. Id. at 7.

V.Analysis and Conclusions

The Agency asserts that although it is not clear from the award whether the "the [A]rbitrator was using the terms 'official warning' and 'reprimand' synonymously[,]" the Agency "intends to interpret her award that way." Agency's Exceptions at 4. The Agency argues that if the formal warning does not constitute a reprimand, the Arbitrator's award violates management's right to discipline under section 7106(a)(2)(A) of the Statute.

The Union concedes that the Arbitrator's award mitigates the 5-day suspension to an official reprimand. Union's Opposition at 4. The Union asserts that if the Arbitrator "intended to impose something less than an 'Official Reprimand' she would have so stated." Id. Because the parties agree that the "formal warning" referred to by the Arbitrator constitutes an official reprimand, the Agency's first exception is moot.

Concerning the Agency's second exception, the Agency's assertion that the Arbitrator was required to apply the same substantive law as the MSPB is misplaced. The Authority repeatedly has stated that arbitrators are bound by the same substantive standards as the MSPB only in resolving grievances over actions covered by 5 U.S.C. §§ 4303 and 7512. Those standards do not apply to resolutions by arbitrators of grievances over lesser disciplinary actions. See Department of the Air Force, Griffiss Air Force Base and American Federation of Government Employees, Local 2612, 34 FLRA 712, 714 (1990).

Suspensions of 14 days or less are not covered under 5 U.S.C. §§ 4303 or 7512. See U.S. Department of the Air Force, Air Force Logistics Command, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 34 FLRA 986, 991 (1990). Because this case involves a 5-day suspension, the Arbitrator was not bound to follow the same substantive standards as the MSPB. Accordingly, we reject the Agency's assertions that the award is deficient because the Arbitrator's findings regarding the issue of disparate treatment conflict with precedent of the Federal Circuit and the MSPB. See Social Security Administration and American Federation of Government Employees, Local 1923, 32 FLRA 765, 768-770 (1988) (SSA).

We also reject the Agency's assertion that the award is deficient because the Arbitrator "misread[]" and improperly interpreted the portion of the parties' agreement relating to the efficiency of the service. Agency's Exceptions at 6.

We construe the assertion that the Arbitrator misread the parties' agreement as a contention that the Arbitrator's award fails to draw its essence from the parties' agreement. For an award to be found deficient as failing to draw its essence from a collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason or fact, so unconnected with the wording and purposes of the agreement as to "manifest an infidelity to the obligation of the arbitrator"; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of Defense, Defense Mapping Agency, Aerospace Center, St. Louis, Missouri and National Federation of Federal Employees, Local 1827, 35 FLRA 1307, 1309 (1990) (Defense Mapping). In this case, the Agency has failed to demonstrate that the award fails to draw its essence from the agreement under any of these standards.

The parties agreed, in Article 31, section F(1) of their contract, that suspensions of 30 days or less "will be taken only for just and sufficient cause and only for such reasons as will promote the efficiency of the service." Award at 9. The Arbitrator found that, consistent with this provision, he was required to determine whether the grievant's automobile accident "impacted the efficiency of the service[.]" Id. The Arbitrator, noting the Union's disagreement with the Agency's assertion that there was such impact, concluded that the Agency had not established that the "efficiency of the service was impacted[]" by the automobile accident. Id. a