National Treasury Employees Union and U.S. Customs Service, Northeast Region (Authority decision, July 29, 1987)

Final FLRA decision. The Authority denies Customs' exception to an arbitration award finding that a five-day suspension for an on-duty fight did not promote service efficiency. 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 five days after a fight with another employee on duty. An arbitrator credited the employee's account that he acted in self-defense and found the suspension did not promote service efficiency. Customs argued that the arbitrator applied the wrong standard for reviewing discipline and gave too little weight to management witnesses. The Authority found no legal defect in the award and denied the agency's exception. The arbitrator's ruling stands.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a).
• Outcome: Customs' exception denied; suspension ruling stands.
• Key point: Disagreement with the arbitrator's view of testimony did not justify setting aside the disciplinary award.

Full text (FLRA public release)

[ v28 p280 ]
28:0280(39)AR

The decision of the Authority follows:

28 FLRA NO. 39

NATIONAL TREASURY
EMPLOYEES UNION

Union

and

U.S. CUSTOMS SERVICE
NORTHEAST REGION

Activity

Case No. O-AR-1357

DECISION

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Edward C. Pinkus filed by the Activity 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 fighting with another employee while on duty. The parties stipulated the issue for resolution as whether the suspension of the grievant "promotes the efficiency of the Service."

The Arbitrator credited the grievant's testimony and found that the record established that the grievant was acting in self-defense. Accordingly, as his award, he ruled that the suspension of the grievant did not promote the efficiency of the Service.

III. Discussion

The Activity contends that the award is deficient on two grounds. First, the Activity argues that the award is contrary to applicable decisions of the Merit Systems Protection Board and the courts because, under the principles enunciated in those decisions, the Arbitrator could only reduce the discipline imposed if he found that in imposing the discipline the Activity had acted in an arbitrary or capricious manner. Second, the Activity argues that the Arbitrator failed to properly credit the testimony of management's witnesses at the arbitration hearing.

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, U.S. International Trade Commission, Washington, D.C. and American Federation of Government Employees, Local 2211, AFL - CIO, 13 FLRA 440 (1983) (exceptions that constitute nothing more than disagreement with an arbitrator's evaluation of the evidence and testimony do not provide a 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., July 29, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY