41:0207(18)AR - - Justice, INS, Honolulu District Office, Honolulu, HI and AFGE Local 2886 and National Immigration and Naturalization Council - - 1991 FLRAdec AR - - v41 p207

[ v41 p207 ]
The decision of the Authority follows:

41 FLRA No. 18










LOCAL 2886





June 12, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator R. Charles Bocken. The Arbitrator denied the grievance over the suspension of the grievant.

The Union 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 Agency filed an opposition to the Union's exceptions.

We conclude that the Union's exceptions provide no basis for finding the award deficient, and we will deny the exceptions.

II. Background and Arbitrator's Award

An attorney for an alien who was a known criminal wrote to the Agency's Honolulu, Hawaii, district director requesting assistance in obtaining a visa for his client. In a letter to the attorney, the district director declined to assist the attorney. The grievant, who is employed by the Agency as a special agent, was interested in assisting the attorney to obtain the visa in order to enhance the grievant's intelligence-gathering efforts. The grievant sought the assistance of the deputy district director in obtaining the requested visa. The deputy director declined to assist the grievant and advised him that the attorney's request for assistance in obtaining the visa had been denied by the district director.

Subsequently, the grievant sought the assistance of his immediate supervisor in an effort to obtain the visa. The grievant and his supervisor recommended that the assistant district director for intelligence authorize a telex to the American embassies in Toyko and Seoul requesting that the visa be granted. At this meeting, neither the grievant nor the grievant's supervisor advised the assistant director of the district director's contrary position. The assistant director authorized the telex, and the grievant sent the telex to the embassies requesting that the visa be granted.

After the district director discovered what had been done, the grievant and his supervisor were instructed to take action to rescind the telex. The grievant was directed specifically to contact immediately the embassies in Tokyo and Seoul, to provide written confirmation of having instructed the embassies to disregard the telex, and to avoid any further contact with the alien's attorney. Although instructed to contact both the Tokyo and Seoul embassies, the grievant contacted only the Tokyo embassy and relied on the representation of the staff of the Tokyo embassy that they would contact Seoul. The grievant also did not confirm the telephone call with written instructions to both embassies to disregard the telex. In addition, although ordered not to have any further contact with the alien's attorney, the grievant spoke with the attorney on the telephone.

The grievant was suspended for 14 days for improper official conduct and failure or delay in carrying out supervisory orders or instructions. The grievant filed a grievance over the suspension. The grievance was not resolved and was submitted to arbitration.

The Arbitrator determined that the pattern of conduct of the grievant reflected a disregard of the policy and instructions of the district director. The Arbitrator found that the grievant knew about the district director's denial of the visa request and knew that the sending of the telex requesting issuance of the visa was contrary to the written decision of the director. The Arbitrator rejected the grievant's defense that he was merely soliciting the support of his immediate supervisor. The Arbitrator ruled that the grievant had an obligation to comply with the district director's directive and to make sure that his immediate supervisor and the assistant district director were aware of the director's position. The Arbitrator also found that the grievant was told to take certain actions to correct the error that was made but that he did not totally comply. The Arbitrator did excuse the grievant's speaking with the alien's attorney because the grievant merely returned the attorney's call not knowing who had called him. Based on the evidence, the Arbitrator concluded that the grievant's conduct was clearly improper.

The Arbitrator rejected the Union's allegation that the discipline could not be sustained because management had failed to provide the grievant with the opportunity for union representation during meetings with the grievant in violation of the parties' collective bargaining agreement. The Arbitrator noted that the Union relied on the decision in Cornelius v. Nutt, 472 U.S. 648 (1985), to support its position that material violations of the agreement can justify vacating the disciplinary action without necessarily finding that the violations caused substantial prejudice to the grievant's rights. The Arbitrator stated that the Court in Cornelius v. Nutt held that employees were required to show substantial prejudice to overturn an agency's disciplinary action. The Arbitrator found that in the case before him, there was no evidence of substantial prejudice and no harmful error warranting overturning the suspension.

The Arbitrator also rejected the Union's contention that the district director failed to consider the "Douglas Factors" before imposing the suspension. Award at 8, 12 (quoting Union's position). The Arbitrator found that the director was familiar with progressive discipline and considered the appropriateness of the penalty although not specifically in terms of the "Douglas Factors."

In sum, the Arbitrator concluded that, in view of the seriousness of the consequences of the acts of the grievant had they not been corrected, the discipline imposed was not excessive. Accordingly, as the award, the Arbitrator denied the grievance.

III. First Exception

A. Positions of the Parties

The Union contends that the award is contrary to law. The Union claims that the Arbitrator misinterpreted law and the decision in Cornelius v. Nutt when he applied the harmful-error rule of 5 U.S.C. § 7701(c). The Union argues that the Authority has decided that the harmful-error rule does not apply to suspensions of 14 days or less. The Union asserts that, consequently, the Arbitrator was wrong in stating that the harmful-error rule applied and was wrong in rejecting the Union's allegations of material violations of the agreement, which warranted overturning the discipline. The Union maintains that, as a result of applying the harmful-error standard rather than "the 'Error' standard," the Arbitrator failed to fully consider all factors in this case and the award is deficient. Union's Exceptions at 5.

The Agency disputes the Union's contention that the Arbitrator failed to fully address the Union's contention that management violated the parties' agreement by failing to provide the grievant with union representation. The Agency contends that the Arbitrator considered and rejected the Union's contention. The Agency maintains that, even under the Union's asserted "error" standard, the result would have been the same because the Union failed to prove a violation of the agreement.

The Agency also argues that the award is not inconsistent with the decision in Cornelius v. Nutt or decisions of the Authority. The Agency maintains that nothing in the decision in Cornelius v. Nutt precludes an arbitrator from using the harmful-error standard in resolving grievances over suspensions of 14 days or less. The Agency similarly maintains that, under decisions of the Authority, arbitrators simply are not required to apply the harmful-error rule when considering suspension of 14 days or less. In the Agency's view, the Arbitrator made his decision based on the standard required by the parties' agreement: whether the discipline imposed was for just cause and for reasons promoting the efficiency of the Agency. The Agency asserts that the reference to the harmful-error rule by the Arbitrator was only made in response to the Union's position on Cornelius v. Nutt and in no way renders the award deficient.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the award is contrary to law. We reject the Union's contention that the award is deficient because the Arbitrator misinterpreted law, the decision in Cornelius v. Nutt, or decisions of the Authority relating to the harmful-error rule under 5 U.S.C. § 7701(c).

The Authority has repeatedly held that the harmful-error rule, as interpreted by the Supreme Court in Cornelius v. Nutt, does not apply to arbitrations of suspensions of 14 days or less. For example, U.S. Department of the Air Force, Air Force Logistics Command, Hill Air Force Base, Utah, 38 FLRA 337, 339 (1990); Department of the Air Force, Griffiss Air Force Base and American Federation of Government Employees, Local 2612, 34 FLRA 712, 714-15 (1990). Thus, under our precedent, arbitrators are not bound by, and are not required to apply, in these types of cases the harmful-error rule as it is applied by the Merit Systems Protection Board (MSPB). For example, U.S. Department of the Air Force, Randolph Air Force Base, Texas and American Federation of Government Employees, Local No. 1840, 40 FLRA No. 79 (1991); U.S. Department of Justice, Immigration and Naturalization Service, Jacksonville, Florida and American Federation of Government Employees, National Border Patrol Council, Local 3725, 36 FLRA 928, 932-33 (1990). In our view, neither Cornelius v. Nutt nor the decisions of the Authority preclude an arbitrator from applying the harmful-error rule as it has been applied by MSPB to a grievance over a suspension of 14 days or less. Therefore, we find that the Arbitrator's determination to apply the harmful-error rule to decide whether the alleged violations of the parties' agreement warranted reversing the grievant's 14-day suspension provides no basis for finding the award to be contrary to law.

We refuse to accept the Union's invitation to find the award deficient because of the Arbitrator's erroneous view of the application of Cornelius v. Nutt. We continue to follow the advice and guidance of the Supreme Court in Paperworkers v. Misco, Inc., 484 U.S. 29 (1987), on the scope of review of arbitration awards. In that case, the Court advised that courts "do not sit to hear claims of factual or legal error by an arbitrator as an appellate court does in reviewing decisions of lower courts." Id. at 38. The Court concluded that "as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced [the arbitrator] committed serious error does not suffice to overturn [the arbitrator's] decision." Id.

We view the Union's exception to constitute mere disagreement with the Arbitrator's interpretation and application of the collective bargaining agreement and his reasoning and conclusions in denying the grievance. Contrary to the claim of the Union that the Arbitrator should have applied the "'Error' standard," Union's Exceptions at 5, a standard the Union cites without explanation, it was for the Arbitrator to determine what standard to apply. As the Authority has indicated in cases involving lesser disciplinary actions not covered by 5 U.S.C. § 7512, because the arbitrator is not bound by the harmful-error rule, it is for the arbitrator to determine whether an agency's disciplinary action should be reversed or mitigated based on any finding of a violation of the collective bargaining agreement. National Federation of Federal Employees, Local 1853 and U.S. Attorney's Office, Eastern District of New York, Brooklyn, N.Y., 29 FLRA 94, 95-96 (1987) (and cases cited in the decision).

In this case, the Arbitrator determined that a disciplinary action would be reversed under the parties' collective bargaining agreement based on a violation of the agreement only when the grievant was substantially prejudiced by the violation. He determined that there was no substantial prejudice and that the grievant's conduct warranted the 14-day suspension. The Union does not argue and, consequently, has not shown that the Arbitrator's interpretation and application of the collective bargaining agreement fails to draw its essence from the parties' agreement. Instead, the Union's exception constitutes nothing more than disagreement with this interpretation and application of the agreement and the Arbitrator's reasoning and conclusions in reaching the determination to deny the grievance. The Authority has continuously held that such disagreement provides no basis for finding an arbitration award deficient. For example, U.S. Department of the Navy, Naval Base, North Island, San Diego, California and International Association of Fire Fighters, Local F-33, 38 FLRA 1509, 1512 (1991); see also Steelworkers v. Enterprise Wheel, 363 U.S. 593, 598 (1960) (the Supreme Court explained that, in order to encourage arbitrators to continue to give their reasons for an award, an arbitrator's reasoning is not a basis for finding an award deficient; to require opinions free of ambiguity would lead arbitrators to "play it safe" by not writing any opinions, which would be undesirable because a well-reasoned opinion engenders confidence in the integrity of the process and aids in clarifying the collective bargaining agreement).

Accordingly, we will deny this exception.

IV. Second Exception

A. Positions of the Parties

The Union contends that the award is based on a nonfact. The Union notes that in t