Immigration and Naturalization Service and AFGE Local 505 (Authority decision, July 17, 1986)

Final FLRA decision. The Authority denies the agency’s exceptions 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

INS suspended an employee for five days after finding firearm, vehicle, and instruction violations. An arbitrator found the misconduct proved but held that the agency's more than eight-month delay in proposing discipline made the suspension unreasonable under the agreement and governing rules. The Authority rejected the agency's exceptions, finding no bar to the arbitrator's review of the final discipline. The order setting aside the suspension and making the employee whole remained in place.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a), 5 U.S.C. § 7503.
• Outcome: Agency exceptions denied; award setting aside the five-day suspension remains.
• Key point: The arbitrator could assess whether the delay in imposing proven discipline made the action unjustified.

Full text (FLRA public release)

[ v22 p643 ]

22:0643(70)AR

The decision of the Authority follows:

22 FLRA No. 70

IMMIGRATION AND NATURALIZATION SERVICE
Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 505
Union

Case No. 0-AR-963

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on exceptions to the award of Arbitrator C. Chester Brisco 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.

II. BACKGROUND AND ARBITRATOR'S AWARD

The grievant was suspended for 5 days for improper use of a firearm, unsafe use of a service vehicle, and failure to follow service instructions and regulations. A grievance was filed and submitted to arbitration on the issue of whether the suspension was for just and sufficient cause. The Arbitrator determined that the evidence established that the grievant engaged in the misconduct with which he was charged. However, the Arbitrator noted that the Agency had delayed more than eight months from the date of the incident before proposing the grievant's suspension. He concluded that this "extraordinary delay" resulted in a disciplinary action which was arbitrary, capricious, and unreasonable and which did not promote the efficiency of the service. He further noted that agency regulations require that discipline must be timely; that the collective bargaining agreement provides that employees shall be furnished with notices of proposed disciplinary action at the earliest practicable date after the alleged offense has been committed and made known to the Agency; and that 5 U.S.C. Section 7503 directs that the employee is entitled to a written decision and the specific reasons for the discipline at the earliest practicable date. Rejecting the Agency's argument that the delay was excusable, the Arbitrator found that the delay violated law, agency regulation, and the collective bargaining agreement and that therefore the delay constituted harmful error and the discipline was contrary to law. As his award the Arbitrator ruled that the suspension was not for just cause and directed that the grievant be made whole.

III. FIRST EXCEPTION

A. Contentions

In its first exception the Agency contends that the award is contrary to 5 U.S.C. Sections 7503 and 7701(c) and the Back Pay Act, 5 U.S.C. Section 5596. In support of its exception, the Agency essentially argues that the Arbitrator's award is deficient because the delay was not a harmful error within the meaning of section 7701(c) which the Agency maintains should be applied to suspensions of 14 days or less taken under section 7503.

B. Analysis and Conclusions

In American Federation of Government Employees, Local 1760 and Social Security Administration, Northeastern Program Service Center, 22 FLRA No. 19 (1986), exceptions were filed to an award rescinding a 10-day suspension. The suspension was rescinded because the arbitrator determined that the activity violated a requirement of the collective bargaining agreement by failing to place all records relied on for the suspension in a particular personnel file. In one of its exceptions, the agency contended that the award was deficient because the arbitrator failed to find that the violation of the agreement constituted harmful error. In denying this exception, the Authority explained the proper application of the harmful error rule of section 7701(c) 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 /*/ that are taken under section 7513; the rule does not apply to suspensions for 14 days or less taken under section 7503. 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.

Consistent with Northeastern Program Service Center, we conclude in this case that the Arbitrator was not required by law to find that the unwarranted delay in proposing disciplinary action constituted harmful error within the meaning of section 7701(c). Accordingly, the Agency's allegation that the Arbitrator failed to properly make such a finding provides no basis for finding the award contrary to law as alleged by the Agency.

IV. SECOND EXCEPTION

A. Contentions

In its second and final exception the Agency contends that the award is contrary to management's right in accordance with section 7106(a)(2)(A) of the Statute to take disciplinary action. In support of this exception, the Agency cites the Authority's decision in National Federation of Federal Employees, Local 615 and National Park Service, Sequoia and Kings Canyon National Parks, U.S. Department of the Interior, 17 FLRA 318 (1985), petition for review filed sub nom. NFFE Local 615 v. FLRA, No. 85-1299 (D.C. Cir. May 15, 1985), and argues that the arbitrator's setting aside of the grievant's suspension merely because of the lapse of time between the act of misconduct and the imposition of the suspension violates section 7106(a)(2)(A).

B. Analysis and Conclusions

The Authority concludes that the Agency's reliance on Sequoia and Kings Canyon National Parks is misplaced. In that case, as correctly noted by the Agency, provision 2 essentially provided that investigations of incidents for which disciplinary action may be taken will normally be initiated within 60 days after the incident. The Authority characterized the provision as establishing a contractual "statute of limitations" on the agency's ability to investigate such incidents. 17 FLRA at 321. Recognizing that in many situations investigations are the essential first step to disciplinary action, the Authority concluded that preventing the initiation of an investigation would in certain circumstances prevent the agency from acting at all with respect to the right to take disciplinary action. In this case, the Agency was in no manner prevented by a statute of limitations provision from investigating the alleged incident of misconduct and from acting to propose and suspend the grievant for 5 days. Instead, as stated by the Arbitrator, this case involves review of final disciplinary action to determine whether the Agency's eight-month delay in imposing discipline resulted in an action which was arbitrary, capricious, and unreasonable and which did not promote the efficiency of the service. As noted, the Arbitrator determined that the suspension of the grievant had resulted in such an unwarranted disciplinary action and on that basis ruled that the suspension was not for just and sufficient cause. We conclude that such an award is not precluded by the decision in Sequoia and Kings Canyon National Parks and that therefore the Agency's argument provides no basis for finding the award deficient.

V. DECISION

For these reasons the Agency's exceptions are denied.

Issued, Washington, D.C., July 17, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

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/*/ 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.