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59 FLRA No. 119
OF GOVERNMENT EMPLOYEES,
DEPARTMENT OF JUSTICE,
IMMIGRATION AND NATURALIZATION
SERVICE, NEW YORK DISTRICT
February 20, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Albert G. Murphy filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied the grievance, which alleged that the grievant's three-day suspension was not for just cause. For the reasons set forth below, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant was suspended for three days for allegedly using profanity towards a co-worker. The Union filed a grievance, which was unresolved and was submitted to arbitration. The Arbitrator framed the relevant issue to be: "Was the three day suspension of [the grievant] for just cause and to promote the efficiency of the Service. If not, what shall the remedy be?" [n1] Award at 1.
Before the Arbitrator, the grievant noted that the event at issue occurred five years earlier, and he disputed that he used profanity towards a co-worker. The grievant also argued that he was not given the opportunity to make an oral reply. Id. at 6. The Arbitrator found that the grievant used profanity towards a co-worker and that the grievant's use of profanity was proscribed by the Agency's Officer's Handbook ("Handbook"). Accordingly, the Arbitrator denied the grievance. [n2]
III. Positions of the Parties
A. Union's Exceptions
The Union argues that the award is contrary to law. Specifically, the Union alleges that, under 5 U.S.C. §§ 7513(b)(2) and 7503(b)(2), the grievant was entitled to both a written and an oral reply to the proposed notice of charges against him. [n3] The Union contends that the Agency committed harmful error by denying the grievant a chance to respond to the charges against him. The Union also contends that the parties have a past practice entitling the grievant to make an oral reply to the charges against him.
The Union further argues that the award is based on a nonfact. Specifically, the Union contends that while the notice of proposed disciplinary action and the award state that the grievant's alleged misconduct occurred at the Downstate Correctional Facility, the grievant never worked at the Downstate Facility and, instead, worked at the Ulster Correctional Facility. The Union contends that, as a result, the grievant could not have engaged in the misconduct alleged in the proposed disciplinary action and found by the Arbitrator in the award.
B. Agency's Opposition
The Agency argues that the grievant was not denied due process because he was given the opportunity [ v59 p670 ] to answer the notice of proposed discipline orally, in writing, or both orally and in writing. The Agency also contends that the grievant was given the opportunity to request an extension for his oral reply and to select an attorney or representative to represent him at the oral reply stage, and thus, was given more extensive rights than are required by due process.
In addition, the Agency disputes the Union's nonfact argument. Specifically, the Agency contends that the grievant's statement to his co-worker -- not the location where the statement was made -- is the central fact underlying the award.
IV. Analysis and Conclusions
A. The award is not contrary to law.
Where a party's exception involves an award's consistency with law, the Authority reviews the question of law raised by the exception and the Arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv., 43 F.3d 682, 686-87 (D.C. Cir. 1994)). Under the de novo standard, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings.
The Union argues that §§ 7513(b)(2) and 7503(b)(2) entitle the grievant to both a written and an oral reply to the proposed notice of disciplinary action. However, § 7513 relates to serious adverse actions covered by § 7512, such as suspensions for more than 14 days. See Overseas Educ. Ass'n, W. Point Elementary Sch. Teachers, 48 FLRA 213, 219 (1993). As the action at issue here is a three-day suspension, § 7513 does not apply, and the Union's argument is misplaced. The Union's reliance on the harmful error rule is also misplaced because that rule does not apply to suspensions of 14 days or less. See Fed. Bureau of Prisons, Fed. Corr. Inst. for Women, Alderson, W. Va., 41 FLRA 311, 315 (1991).
With regard to 5 U.S.C. § 7503, that section covers suspensions of 14 days or less. United States Dep't of the Air Force, Okla. City Air Logistics Command, Tinker Air Force Base, Okla., 47 FLRA 776, 781 n.2 (1993). In United States Dep't of Veterans Affairs, Nat'l Mem'l Cemetery of the Pac., 45 FLRA 1164, 1175 (1992), the Authority found that employees subject to actions covered by § 7503 have a right to constitutional due process. Such employees are not due post-suspension proceedings but are entitled to pre-decisional proceedings no more formal or extensive than an oral or written notice of the charges, an explanation of the employer's evidence, and an opportunity for the employee to present his or her side of the story. Id. at 1177; AFGE, Local 1151, 54 FLRA 20, 26-7 (1998) (Local 1151).
In the present case, the grievant's three-day suspension is an action covered by § 7503. The grievant was given written notice of his proposed suspension, which set forth an explanation of the Agency's evidence against the grievant. See Exceptions, Attachment A at 1 (Notice of Proposed Disciplinary Action). In addition, contrary to the Union's arguments, it is clear that the Agency gave the grievant the opportunity to make an oral reply. He was given ten days, and additional days if requested, from receipt of the notice of proposed suspension to review the material on which the notice was based and to answer it orally, in writing, or both orally and in writing. Id. at 1-2. The Agency further informed the grievant that he could submit affidavits or other evidence in support of his answer and that he had the right to be represented by an attorney or representative of his choice. Id. at 2. Thus, the grievant's constitutional and statutory rights to due process were satisfied. See Local 1151, 54 FLRA at 27. As the Union provides no basis for finding that the award is contrary to 5 U.S.C. § 7503 or that the grievant was denied constitutional due process, we deny the exceptions.
In addition, because the Agency clearly gave the grievant an opportunity to make an oral reply to the proposed charges against him, the Union's arguments to the contrary provide no basis for finding that the award is deficient as violating a past practice or that the award fails to draw its essence from the collective bargaining agreement. Accordingly, we deny the exceptions.
B. The award is not based on nonfact.
To establish that an award is based on a nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). An award will not be found deficient based on an arbitrator's determination of any factual matters that the parties disputed below. Id. at 594.
The grievant argues that because the Arbitrator found that the grievant engaged in misconduct at the Downstate Correctional Facility, instead of the Ulster Correctional Facility where he was stationed, the award is based on a nonfact. However, the location of the grievant was not a central fact in the Arbitrator's denial of the grievance. Instead, the Arbitrator denied the grievance because he found that the grievant used profanity towards a co-worker, and that this conduct was prohibited by the Handbook. Because the disputed factual finding is not a central fact underlying the award, the Union's argument does not provide a basis for finding the award deficient, and we deny the exception. See NAGE, Local R1-109, 58 FLRA 501, 503 (2003).
We deny the Union's exceptions.
Footnote # 1 for 59 FLRA No. 119 - Authority's Decision
Footnote # 2 for 59 FLRA No. 119 - Authority's Decision
The award references a subsequent termination of the grievant that was appealed to the Merit Systems Protection Board ("MSPB"). Although the conduct alleged in this case was cited as part of the justification for that termination, the claim advanced at arbitration concerned only the grievant's three-day suspension. Award at 2, 4. A three-day suspension is not a matter appealable to the MSPB and reviewable by the United States Court of Appeals for the Federal Circuit. See 5 C.F.R. 1201.3. Accordingly, noting that there is no claim to the contrary, we have jurisdiction to resolve the Union's exceptions.
Footnote # 3 for 59 FLRA No. 119 - Authority's Decision
5 U.S.C. § 7513(b)(2) states, in relevant part, that an employee against whom a serious adverse action under 5 U.S.C. § 7512 is proposed is entitled to "a reasonable time . . . to answer orally and in writing . . . ." Actions covered by 5 U.S.C. § 7512 include removals, suspensions for more than 14 days, reductions in grade and pay, and furloughs of 30 days or less. See 5 U.S.C. § 7512.