National Treasury Employees Union and U.S. Customs Service (Authority decision, October 31, 1984)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority denying exceptions to an arbitration award. The order concerns an arbitration award under 5 U.S.C. § 7122. Section 7123(a)(1) generally excludes such orders from judicial review unless they involve an unfair labor practice under § 7118.

Plain-English summary

The Customs Service directed an inspector to end an alleged conflict of interest arising from his wife's clerical job at a customs brokerage firm or face discipline. An arbitrator found no direct or apparent conflict and ordered the directive rescinded. The Authority rejected the agency's exceptions, finding that its arguments disputed the arbitrator's factual and contract conclusions without showing a violation of the cited conduct rules. The rescission remained in place.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a) and Executive Order 11222 conduct rules.
• Outcome: Agency's exceptions denied; arbitrator's rescission order upheld.
• Key point: Disagreement with the arbitrator's conflict finding did not establish that the award was legally deficient.

Full text (FLRA public release)

[ v16 p377 ]

16:0377(61)AR

The decision of the Authority follows:

16 FLRA No. 61

NATIONAL TREASURY EMPLOYEES UNION
Union

and

U.S. CUSTOMS SERVICE
Agency

Case No. 0-AR-521

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Ann Harmon Miller 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 dispute in this matter arose when the Agency directed the grievant, a Customs Inspector, to either terminate an alleged conflict of interest, which allegedly existed because the grievant's wife worked for a Customs brokerage firm, or face disciplinary action. The Arbitrator found that the grievant's wife worked for the brokerage firm in a clerical capacity; that she took no part in the firm's managerial or supervisory decisions; that she was not empowered to transact business with Customs; that she was not a licensed broker; and that neither the grievant nor his wife had any financial interest in the firm. The Arbitrator also noted that the Agency had determined in another situation where a Customs Inspector's wife worked in a clerical capacity for a broker that there was no conflict of interest and that the Agency failed to show how that situation was different from the instant dispute. The Arbitrator rejected the Agency's assertions that the facts in this case presented either a direct conflict of interest or the appearance of such a conflict. The Arbitrator concluded that the Agency violated the parties' collective bargaining agreement when it directed the grievant to terminate the alleged conflict or face disciplinary action. As a remedy, the Arbitrator ordered the Agency to rescind the directive.

In its exceptions, the Agency contends that the Arbitrator's award is contrary to law and regulation. More specifically, the Agency contends that the award is contrary to Executive Order 11222 and regulations governing standards of conduct.

Upon careful consideration of the entire record before the Authority, the Authority concludes that the Agency has failed to establish that the award is contrary to law or regulation. Thus, E.O. 11222 and the implementing regulations relied upon by the Agency simply prohibit conduct by Federal employees which creates either a direct conflict of interest or the appearance of such a conflict. It is clear that the Arbitrator carefully considered the pertinent provisions and the Agency's related arguments. In its exceptions, reiterating arguments made before the Arbitrator, the Agency essentially asserts that the Arbitrator erred in concluding that there was no appearance of a conflict of interest. However, the assertions fail to establish that the Arbitrator's award is contrary to E.O. 11222 or the implementing regulations. Rather, the Agency's contentions constitute nothing more than disagreement with the Arbitrator's findings of fact, with her reasoning and conclusions resolving the merits of the issue before her, and with her interpretation and application of the parties' collective bargaining agreement. It is well-established that such assertions do not provide a basis for finding an award deficient. E.g., Social and Rehabilitation Service, Department of Health, Education and Welfare and American Federation of Government Employees, Local 41, AFL-CIO, 12 FLRA No. 59 (1983); National Association of Government Employees, Local R4-96 and Naval Weapons Station, Yorktown, Virginia, 11 FLRA No. 116 (1983).

Accordingly, the Agency's exceptions are denied. Issued, Washington, D.C., October 31, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY