U.S. Federal Labor Relations Authority

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51:0743(64)AR - - Treasury, Customs Service, NY, NY and NTEU, Chapter 153 - - 1996 FLRAdec AR - - v51 p743

[ v51 p743 ]
The decision of the Authority follows:

51 FLRA No. 64















January 17, 1996


Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Susan T. MacKenzie 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 Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance contesting the Agency's 10-day suspension of the grievant and reduced the penalty to an official reprimand. For the following reasons, we conclude that the Agency's exception fails to establish that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exception.

II. Arbitrator's Award

The Agency suspended the grievant, a Customs Inspector, for 10 days for negligent performance of assigned duties. The Union filed a grievance over the suspension and, when it was not resolved, it was submitted to arbitration on the following issues, as stipulated by the parties:

Is the . . . case arbitrable based on the timeliness of the invocation?

Does the Agency decision to suspend [the grievant] promote the efficiency of the Service?

Is the Agency decision to suspend [the grievant] for just cause?

Award at 1.

The Arbitrator determined that the Union timely invoked arbitration on the grievance and that, therefore, it was arbitrable.(1) On the merits, the Arbitrator determined that the Agency's decision to discipline the grievant was "appropriate," but that the 10-day suspension was "excessive under the totality of the circumstances." Id. at 13.

The Arbitrator stated that the grievant admitted performing his duties in a negligent manner. However, according to the Arbitrator, the negligence resulted from a "mere mistake." Id. at 15. The Arbitrator also stated that, although the grievant previously had been suspended, that suspension "was for conduct wholly unrelated to the conduct here under review." Id. at 17. Citing Article 28, Section 5 of the parties' agreement, which identifies factors to be considered by the Agency in determining the appropriate level of discipline,(2) and noting, among other things, that the Agency's regulatory table of penalties provided a range of discipline from an official reprimand to a 2-day suspension for a "first offense" of negligence, the Arbitrator concluded that the appropriate discipline under the circumstances of this case was an official reprimand.(3) Id. at 18. Accordingly, the Arbitrator sustained the grievance and ordered the 10-day suspension to be reduced to an official reprimand.

III. Positions of the Parties

A. Agency

The Agency claims that the award is based on a nonfact. In particular, the Agency argues that the Arbitrator "misapprehended the meaning of the term 'offense' for purposes of the Agency's table of penalties[,]" and also "misapprehended that the offense was only the grievant's first offense." Exceptions at 2. According to the Agency, decisions of the Merit Systems Protection Board establish that prior discipline is an important factor in assessing an appropriate penalty for subsequent misconduct, and that prior discipline "need not be related to make a current offense a second offense . . . ." Id. at 3. The Agency asserts that, if the Arbitrator had known "that prior offenses of any type may form the basis for proposing progressive discipline and that the minimum discipline recommended for the cited second offense was a suspension, she would not have reduced the discipline to a letter of reprimand." Id. at 2.

B. Union

The Union asserts that the Arbitrator both considered the grievant's prior suspension and acknowledged that, under the Agency's table of penalties, discipline is to be progressive. According to the Union, the Agency has not established that the Arbitrator's finding on a central fact is clearly erroneous and, as such, has not demonstrated that the award is based on a nonfact. The Union also claims that Article 28, Section 5 of the parties' agreement "takes preemption" over the table of penalties, Opposition at 3, and that the Arbitrator properly applied the agreement in her award.

IV. Analysis and Conclusion

To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). The mere fact that the appealing party disputes an arbitral finding does not provide a basis for finding that an award is based on a nonfact. See Electronics Corp. of America v. IUE, 492 F.2d 1255 (1st Cir. 1974).

The Agency's exception assumes that application of its table of penalties, an Agency regulation, is dispositive of the issues before the Arbitrator. However, it is well established that collective bargaining agreements, rather than agency regulations, govern the disposition of matters to which they both apply. U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 194 (1990). Both the regulation and Article 28, Section 5 of the parties' agreement concern the same matter: factors to be considered in assessing the appropriateness of disciplinary penalties. Accordingly, even if the Arbitrator erred in interpreting the regulation, such error would not provide a basis on which to find the award deficient because the agreement--not the regulation--controlled the disposition of the grievance.

In particular, although the Arbitrator's statement regarding the grievant's "first offense" refers to the Agency's table of penalties, the Arbitrator expressly linked her conclusion regarding the appropriate discipline of the grievant only to "consideration of the factors to be included in deciding the appropriate level of discipline pursuant to Article 28.5." Award at 18. The Agency has not demonstrated that but for the Arbitrator's statement regarding the range of penalties for a first offense of negligence under the Agency's table of penalties, the award, which is based on the parties' agreement, would have been different. Consequently, without addressing whether the disputed statement is clearly erroneous, it does not provide a basis on which to find the award deficient.

Accordingly, we deny the Agency's exception.

V. Decision

The Agency's exception is denied.

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

1. As no exceptions were filed to this determination, we will not address it further.

2. Article 28, Section 5 provides, in pertinent part that, "[i]n deciding what action is appropriate, the Employer shall give due consideration to the relevance of any mitigating or aggravating circumstances." Award at 2. The provision lists 13 separate "illustrative" factors to be considered. Id.

3. The Arbitrator referred to Customs Directive (CD) 51751-01, Table of Offenses and Penalties, which provides, in part:

. . . Disciplinary actions shall be progressive. However, progressive discipline need not follow any specific sequence of disciplinary actions . . . .

Award at 3; Attachment to Exceptions.