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48:0908(96)AR - - Justice, Federal Bureau of Prisons, Federal Correctional Institution, Ashland, KY and AFGE, Local 1286 - - 1993 FLRAdec AR - - v48 p908

[ v48 p908 ]
The decision of the Authority follows:

48 FLRA No. 96











LOCAL 1286






November 19, 1993


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 Stanley H. Sergent filed by the Agency 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.

The Arbitrator reduced the grievant's 14-day suspension to a written reprimand and directed the Agency to reimburse him for pay and benefits lost because of the suspension. For the following reasons, we conclude that the Agency fails to establish that the award is deficient. Accordingly, we will deny the Agency's exceptions.

II. Background and Arbitrator's Award

After the grievant, an auto body instructor, admitted to an Agency investigator that he had divulged confidential information concerning an inmate, he received a 14-day suspension. When the grievance over the suspension was not resolved, it was submitted to arbitration. According to the Arbitrator, the parties stipulated that the issue was:

whether the disciplinary action that was taken against the grievant was for just and sufficient cause and, if not, what is the appropriate remedy[?]

Award at 14.

Initially, the Arbitrator found that there was "no doubt" that the grievant, "at least in a technical sense," violated an Agency policy prohibiting unauthorized disclosure of official information. Id. at 15. However, the Arbitrator determined that the grievant's misconduct did not warrant a 14-day suspension. The Arbitrator characterized the misconduct as "relatively innocuous" because the grievant "merely passed on information to his wife that he had obtained through rumor, rather than by probing into an inmate's confidential records and then making that information public." Id. at 15, 16. The Arbitrator found that, "contrary to the express requirement of the Agency's disciplinary procedure," management failed to justify its basis for imposing on the grievant "a penalty substantially more severe than that which was called for" under the Agency's schedule of disciplinary offenses and penalties.(1) Id. at 17.

The Arbitrator also found that management's handling and processing of the disciplinary action was flawed by "'harmful error' in several critical respects." Id. at 18. In the Arbitrator's judgment, "if a thorough investigation had been conducted at the outset it would have revealed that the grievant's misconduct [was] more aptly described as a[] benign or inadvertent passing on of rumors than an intentional dissemination of official information about an inmate for improper purposes." Id. In addition, the Arbitrator noted that management's investigator did not advise the grievant of the severity of the charges against him or of his right to Union representation during questioning. The Arbitrator stated that, if the grievant had been so advised, "a strong possibility exists that . . . some of the exculpatory facts, such as the innocent nature of the grievant's mistake could have been developed prior to the decision with respect to his punishment." Id. at 19 (footnote omitted). The Arbitrator also determined that the grievant's supervisor's minimal involvement in the disciplinary process denied the grievant "all of the procedural protections to which he [was] entitled under the contract and under the law," and that the disputed suspension failed to promote "the efficiency of the service . . . ." Id. at 16.

The Arbitrator concluded that "at worst a written reprimand should have sufficed to correct the grievant's mistake and put him on notice regarding his duty to safeguard and maintain the confidentiality of information he receive[d] concerning inmates . . . ." Id. at 20. Accordingly, as his award, the Arbitrator ordered the Agency to rescind the disputed suspension and reimburse the grievant for lost earnings and other benefits. However, "in recognition of the fact that the grievant did unwittingly engage in a minor transgression," the Arbitrator authorized the Agency, at its discretion, to substitute "a written reprimand for the unauthorized dissemination of official information." Id.

III. Positions of the Parties

A. Agency

The Agency asserts that the award is inconsistent with management's right to suspend employees under section 7106(a)(2)(A) of the Statute because it prevents management from reimposing a suspension after correcting the cited procedural errors.(2) The Agency also asserts that the award must be set aside because, in the Agency's view, "the Authority is required to set aside or modify the award if it finds that the [A]rbitrator's interpretation and application of any negotiated provision 'affect[ed] the authority of' the [Agency's] managers to 'suspend' the grievant as provided by 5 U.S.C. § 7106(a)(2)(A)." Exceptions at 29 (emphasis in original). In addition, the Agency contends that the Arbitrator erred when he applied the harmful error rule set forth in 5 U.S.C. § 7701(c)(2)(A) in setting aside the grievant's 14-day suspension.

The Agency also contends that the award fails to draw its essence from the parties' agreement. The Agency asserts that "there is no provision in the parties' agreement that requires management to conduct any investigation . . . before proposing adverse or disciplinary action, not to mention requiring an investigation by the disciplined employee's own supervisor." Id. at 18 (emphasis in original). The Agency also asserts that there is no requirement in the agreement for management's investigator to inform a grievant of a right to Union representation or of the severity of the charge against him and that the Agency's table of offenses is not part of the parties' agreement.

Finally, according to the Agency, "the deciding official's alleged lack of knowledge of possible mitigating factors was the central fact" leading to the Arbitrator's conclusion that the penalty was excessive. Id. at 39. The Agency contends that, contrary to the Arbitrator's conclusion, the grievant and his Union representative presented all relevant facts to the deciding official before the 14-day suspension was imposed.

B. Union

The Union contends that the Agency has failed to establish that the award is contrary to law. In the Union's view, the Agency "is merely disagreeing with the factual findings and conclusions of the Arbitrator." Opposition at 2. Further, the Union asserts that the award draws its essence from the parties' agreement and that "[n]o portion of the award is based on non-fact." Id.

IV. Analysis and Conclusions

A. Award Is Not Contrary to Law

We reject the Agency's argument that the award is deficient because the Arbitrator erred in applying the harmful error rule set forth in 5 U.S.C. § 7701(c)(2)(A). Where discipline involves suspensions for 14 days or less, arbitrators are not required to apply the standards prescribed in section 7701, including the harmful error rule. However, neither judicial nor Authority precedent precludes arbitrators from applying those standards. See U.S. Department of the Air Force, Oklahoma City Air Logistics Command, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 47 FLRA 776, 779 (1993).

We also reject the Agency's contention that the award is deficient because it interferes with management's right to suspend employees under section 7106(a)(2)(A) of the Statute. It is well established that an arbitrator has the authority to determine that all or part of a disciplinary penalty is not imposed for just cause and to set aside or reduce the penalty. Specifically, an arbitrator's mitigation of a penalty does not interfere with management's right to discipline. See, for example, U.S. Department of Justice, Immigration and Naturalization Service, New York District Office and American Federation of Government Employees, Immigration and Naturalization Service Council, Local 1917, 42 FLRA 650, 658 (1991) (INS, New York District Office); U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local 39, 42 FLRA 322, 327 (1991). In this regard, we conclude that agencies have no greater right to suspend than they have to impose any other form of disciplinary action. For example, it is clear that arbitrators have the authority to reinstate employees terminated for cause. See, for example, Horner v. Hardy, 87 FLRR 1-8028 (Fed. Cir. Sept. 11, 1987). It is equally clear that the Statute authorizes arbitrators to set aside suspensions. See, for example, INS, New York District Office, 42 FLRA 650. Accordingly, we find that the award, reducing the 14-day suspension to a written reprimand, is not inconsistent with management's right to suspend under section 7106(a)(2)(A) of the Statute.

B. Award Draws Its Essence from the Agreement

An award fails to draw its essence from an agreement when the party making this allegation establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, National Treasury Employees Union and Federal Deposit Insurance Corporation, Division of Liquidation, Orlando Consolidated Field Office, Orlando, Florida, 48 FLRA 462, 464-65 (1993).

Here, the Arbitrator found that the disputed 14-day suspension did not satisfy the just cause standard set forth in the parties' agreement because, among other things, management rarely imposed penalties exceeding those prescribed in its policy. Nothing in the Arbitrator's interpretation of the agreement is irrational, implausible, unfounded, or in manifest disregard of the agreement. Instead, the Agency's exception constitutes mere disagreement with the Arbitrator's application of the agreement and provides no basis for finding the award deficient. See, for example, American Federation of Government Employees, Local 96 and U.S. Department of Veterans Affairs Medical Center, St. Louis, Missouri, 47 FLRA 922, 930 (1993).

C. Award Is Not Based on a Nonfact

To establish that an award is based on a nonfact, the party so alleging must demonstrate that the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See, for example, U.S. Nuclear Regulatory Commission, Arlington, Texas and National Treasury Employees Union, 48 FLRA 466, 469-70 (1993).

The Agency has failed to establish that the Arbitrator's finding that the deciding official lacked knowledge of possible mitigating factors when he imposed the 14-day suspension was a central fact underlying the award or was clearly erroneous. Moreover, even if the Arbitrator incorrectly found that the deciding official was unaware of mitigating facts, the Agency has not demonstrated that, but for such a finding, the Arbitrator would have reached a different result. Therefore, the Agency has not demonstrated that the award is based on a nonfact. See, for example, American Federation of Government Employees, Local 2128 and U.S. Department of Defense, Defense Logistics Agency, Defense Contract Management District South, 47 FLRA 962, 967 (1993).

V. Decision

The Agency's exceptions are denied.

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

1. The Agency's schedule of disciplinary offenses and penalties provides penalties ranging from a reprimand to a 5-day suspension for a first offense of unauthorized dissemination of official information. According to testimony at the hearing, the recommended penalties are "rarely exceeded." See award at 17, n.3.

2. The Agency also contends that the award is inconsistent with section 7106(a)(2)(B) of the Statute. However, the Agency does not identify which of the rights set forth in section 7106(a)(2)(B) is allegedly violated and does not advance any specific arguments in support of its assertion. As it is not otherwise apparent to us that the award conflicts with any rights enumerated in section 7106(a)(2)(B), we will not address this contention further.