NTEU and U.S. Customs Service, Pacific Region (Authority decision, June 24, 1987)

Final FLRA decision. The Authority denies the Customs Service's exception to an arbitration award replacing a 14-day suspension with oral counseling confirmed in writing. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

Customs suspended an employee for 14 days after alleging sleeping on duty, refusing a detail, and giving improper advice to a supervisor's secretary. An arbitrator found the sleeping incident isolated and too weak to justify suspension, found the detail refusal was treated unevenly, and found no improper advice. She reduced the penalty to oral counseling confirmed in writing. Customs challenged that reduction as unlawful. The Authority held that an arbitrator may reduce a penalty found unsupported by just cause and denied Customs' exception.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a).
• Outcome: Agency exception denied; reduced counseling penalty stands.
• Key point: The agency's disagreement with the arbitrator's factual and penalty findings did not show a deficient award.

Full text (FLRA public release)

[ v27 p648 ]

27:0648(74)AR

The decision of the Authority follows:

27 FLRA No. 74

NATIONAL TREASURY EMPLOYEES UNION
Union

and

UNITED STATES CUSTOMS SERVICE,
PACIFIC REGION
Activity

Case No. 0-AR-1326

DECISION

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Sara Adler filed by the Activity under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.

II. Background and Arbitrator's Award

The grievant was suspended for 14 days based on three separate incidents: (1) sleeping on duty; (2) refusing to accept a 3-month detail because of personal hardship; and, (3) giving improper advice to his supervisor's secretary. A grievance was filed contesting the suspension and the matter was submitted to arbitration.

The Arbitrator found as to the first incident that because the alleged sleeping on duty occurred 5 months before the discipline was imposed and there was no recurrence, it was clearly an isolated incident and the facts, "considered in their totality," were too weak to support a suspension. The Arbitrator found as to the second incident that although the Activity had a right not to take personal hardship into account in details, the Agency had allowed another officer to be excused from a similar detail because of personal hardship. The Arbitrator determined that the Activity had not considered the claims in an evenhanded manner or used a clearly articulated standard. The Arbitrator concluded that the grievant's refusal of the detail did not constitute misconduct and did not provide a basis for discipline. The Arbitrator found as to the third incident that based on the evidence before her, the advice given by the grievant to the supervisor's secretary was not improper or prohibited. The Arbitrator concluded that the single incident of sleeping on duty was insufficient to support a 14-day suspension and as her award, reduced the penalty to an oral counselling, confirmed in writing.

III. Discussion

The Activity contends that the Arbitrator's award reducing the discipline imposed is contrary to law because it is an improper mitigation of the penalty.

We conclude that the Activity has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule or regulation or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. For example, Federal Correctional Institution, Petersburg, Virginia and American Federation of Government Employees, Local 2052, Petersburg, Virginia, 13 FLRA 108 (1983) (exceptions that constitute nothing more than an attempt to relitigate the merits of a dispute before the Authority and disagreement with an arbitrator's reasoning and conclusions and interpretation of a negotiated agreement provide no basis for finding an award deficient); Portsmouth Naval Shipyard and Federal Employees Metal Trades Council, AFL-CIO, 5 FLRA 230 (1981) (an arbitrator properly may determine that all or part of a disciplinary penalty was not for just cause as required by a negotiated agreement and may set aside or reduce the penalty). Accordingly, the Activity's exception is denied.

Issued, Washington, D.C., June 24, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY