Social Security Administration and AFGE Local 1923 (Authority decision, July 17, 1986)

Final FLRA decision. The Authority denies the agency’s exception to an arbitration award. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitration award is generally excluded from ordinary judicial review unless it involves an unfair labor practice under § 7116; this decision does not decide one.

Plain-English summary

SSA suspended an employee for 14 days based on investigative records that had not been placed in the required personnel file under its bargaining agreement. An arbitrator overturned the suspension and ordered make-whole relief. The Authority rejected the agency's argument that the arbitrator needed to find harmful error before granting that remedy. The harmful-error rule cited by the agency applied to more serious adverse actions, not a suspension of 14 days or less.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a), 5 U.S.C. § 7121(e)(2).
• Outcome: Agency exception denied; award overturning the 14-day suspension stands.
• Key point: The harmful-error requirement for specified adverse actions did not govern this short suspension.

Full text (FLRA public release)

[ v22 p602 ]

22:0602(66)AR

The decision of the Authority follows:

22 FLRA No. 66

SOCIAL SECURITY ADMINISTRATION
Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923
Union

Case No. 0-AR-1112

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on an exception to the award of Arbitrator Robert H. Mount filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition.
/1/

II. BACKGROUND AND ARBITRATOR'S AWARD

A grievance was filed and submitted to arbitration claiming, among other things, that the 14-day suspension of the grievant could not be upheld because the records used as a basis for the suspension were not placed in a particular personnel file as required by the parties' collective bargaining agreement. The Arbitrator agreed. He concluded that the suspension could not be upheld because the summary of the investigation had not been placed in the proper personnel file prior to the proposed suspension as required by the agreement. For this reason the Arbitrator sustained the grievance, overturned the suspension, and ordered that the grievant be made whole.

III. EXCEPTION

In its exception the Agency contends that the award is contrary to section 7121(e)(2) of the Statute and 5 U.S.C. Section 7701(c) as interpreted by the U.S. Supreme Court in Cornelius v. Nutt, 105 S. Ct. 2882 (1985). Essentially, the Agency argues that the award is deficient because the Arbitrator failed to make the finding that the violation of the agreement constituted "harmful error" within the meaning of section 7701(c).

IV. ANALYSIS AND CONCLUSIONS

In American Federation of Government Employees, Local 1760 and Social Security Administration, Northeastern Program Service Center, 22 FLRA No. 19 (1986), the Authority was presented with a virtually identical case involving the same Agency and the same provision of the parties' national collective bargaining agreement. In Northeastern Program Service Center the arbitrator determined that the activity had violated the same requirement of the parties' collective bargaining agreement by failing to place all records relied on for the 10-day suspension of the grievant in the proper file, and the arbitrator for that reason directed that the suspension be rescinded and the grievant be made whole. As in this case, the Agency filed exceptions to that award contending, among other things, that the award was deficient because the arbitrator failed to make the finding that the violation of the agreement constituted harmful error. In rejecting this argument, the Authority explained the proper application of the harmful-error rule as it pertains to the arbitration of disciplinary actions. The Authority explained that the rule applies in accordance with section 7121(e)(2) of the Statute only to the more serious adverse actions enumerated in 5 U.S.C. Section 7512
/2/ that are taken under section 7513; the rule does not apply to suspensions for 14 days or less. In Northeastern Program Service Center the Authority therefore concluded that the arbitrator was not required by law to find that the violation of the parties' agreement constituted harmful error and that his failure to do so provided no basis for finding the award contrary to law as alleged by the Agency.

In this case, the Authority concludes for the same reasons set forth in Northeastern Program Service Center that the Arbitrator likewise was not required by law to find that the violation of the parties' agreement constituted harmful error and that his failure to do so likewise provides no basis for finding the award contrary to law.

V. DECISION

Accordingly, the Agency's exception is denied. Issued, Washington, D.C., July 17, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

(1) In its opposition, the Union argues, among other things, that the Agency's exception should be dismissed because under the parties' collective bargaining agreement, exceptions assertedly cannot be filed to expedited arbitration awards. The Authority, however, has previously rejected this argument and concludes that this matter is properly before the Authority for decision. Social Security Administration and American Federation of Government Employees, 16 FLRA 552 (1984).

(2) Section 7512 applies to a removal, a suspension for more than 14 days, a reduction-in-grade, a reduction-in-pay, and a furlough of 30 days or less.