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38 FLRA No. 112

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

TERRE HAUTE, INDIANA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL OF PRISON LOCALS

LOCAL 720

(Union)

0-AR-1951

DECISION

January 14, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Amedeo Greco filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency did not file an opposition to the Union's exceptions.

The Union filed a grievance over the Agency's decision to suspend the grievant for 1 day. The Arbitrator denied the grievance.

For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient.

II. Background and Arbitrator's Award

In late August 1989, when the grievant, a cook foreman at the U.S. Penitentiary in Terre Haute, Indiana, was serving food in the presence of about 30 inmates, he saw a mouse on the floor, stepped on it, and killed it. An inmate, who was present, handed the grievant his food tray and "jokingly" said "'Put it on bread and I'll eat it.'" Award at 2. After putting the mouse on a piece of bread on the inmate's tray, the grievant removed the tray, the bread, and the mouse from the food area.

After investigating the incident, the Agency suspended the grievant for 1 day for "Unprofessional Conduct Unbecoming a Correctional Worker." Id. at 4. The Union filed a grievance on behalf of the grievant claiming that the incident was harmless, and that the Agency committed harmful error in investigating the matter. When the grievance was not resolved, it was submitted to arbitration on the issue of whether the Employer had just cause to discipline the grievant. Id. at 2.

The Arbitrator found that the Agency had just cause to discipline the grievant because of "the extraordinary nature of the work environment . . . , and the overriding need for all employees to avoid either the appearance of treating any inmates in a disrespectful manner or the appearance of not caring about the food they serve the inmates[.]" Id. at 7 (emphasis omitted). He found also that the various procedural errors asserted by the Union did not warrant setting aside the discipline because the Union "failed to establish the kind of 'harmful error' required under Section 1201.56(b)(1) of the Merit Systems Protection Board . . . ."

Id. at 10. Accordingly, the Arbitrator dismissed the grievance.

III. The Union's Exceptions

The Union argues that the award is contrary to law, rule, regulation, and the "Grievant's rights." Exceptions at 1. The Union contends that the award is deficient because: (1) it is contrary to the Master Agreement, (2) the Agency committed harmful error, and (3) the Agency did not inform the grievant of his rights to Union representation during the investigation of the incident and, thereby, discouraged membership in the Union.

IV. Analysis and Conclusions

A. The Award Draws Its Essence From the Parties' Agreement

The Union claims that the award is contrary to Article 30, section c of the parties' agreement because the grievant was suspended "'for an example to others'" and not "to correct and improve employee behavior[,]" as required by the agreement. Exceptions at 1. The Union further argues that the award is contrary to Article 30, section e of the agreement, which requires that "'[b]oth charges and specifications are to be on the letter of proposal.'" Id. at 2. The Union maintains that because the correct date of the incident was not ascertained by the Agency, the award is contrary to the agreement. Id.

We construe the Union's exceptions as a claim that the award is deficient because it fails to draw its essence from the agreement. In order for an award to be found deficient because it fails to draw its essence from an agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1336, 37 FLRA 766, 771 (1990) (SSA).

The Union has not demonstrated that the Arbitrator's award is deficient under any of these tests. The Arbitrator rejected the Union's contention that the suspension violated Article 30, section c of the parties' agreement. According to the Arbitrator, as it was appropriate for management "to be concerned over how this matter looked to the inmates[,]" the discipline based on an "example to others" was proper. Award at 11.

The Arbitrator also rejected the Union's argument that the suspension violated Article 30, section e. The Arbitrator found that although "there were problems with the scope and accuracy of the Employer's investigation[,]" the errors were not "prejudicial to [the grievant's] defense since the facts herein are undisputed and conclusively establish that [the grievant] did do what he was charged with[.]" Id. at 9-10.

In our view, the Union's exceptions that the award violates Article 30 of the parties' agreement constitute mere disagreement with the Arbitrator's findings and interpretation and application of the parties' agreement. Consequently, these exceptions provide no basis for finding the award deficient. See SSA, 37 FLRA at 772.

B. The Harmful Error Rule Does Not Apply

The Union maintains that because it met its burden of proving that the Agency committed harmful error by failing to follow its own regulations, the award conflicts with 5 U.S.C. § 7701. The Union argues, in this regard, that the Agency violated its regulations by (1) improperly taking a statement from the grievant and (2) failing to conduct a complete investigation. Exceptions at 3. The Union asserts further that the Agency committed harmful error by charging the grievant with an offense that is not contained in the Agency's Standards of Conduct and by failing to consider properly the appropriateness of the penalty.

The harmful error rule of 5 U.S.C. § 7701(c) applies to an arbitrator's resolution of a grievance over performance-based and other major adverse actions covered by 5 U.S.C. §§ 4303 and 7512, respectively. See U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 35 FLRA 1267, 1269 (1990). The harmful error rule does not apply to other actions, including suspensions of 14 days or less. Accordingly, as the award involves a 1-day suspension, the Union's contention that the award violates 5 U.S.C. § 7701(c) provides no basis for finding the award deficient.

C. The Award Does Not Violate Section 7116(a) of the Statute

The Union claims that the award is deficient because the Union met its burden of proving that the Agency violated the grievant's rights to Union representation. The Union asserts that the Agency violated section 7116(a)(1) of the Statute, "as defined by sections 7101, 7102, 7103, 7114" of the Statute, by obtaining a written statement from the grievant without informing him of his rights to Union representation. Exceptions at 4. The Union further claims that by failing to inform the grievant of his rights, the Agency discouraged membership in the Union, in violation of section 7116(a)(2) of the Statute.

The Arbitrator found the grievant was not denied his rights to representation because the grievant "in fact never asked for Union representation." Award at 12. As the Arbitrator correctly pointed out, the Statute requires a union to be provided an opportunity to be present during an investigatory interview when "'the employee requests representation.'" Id. quoting 5 U.S.C. § 7114(a)(2)(B)(ii). See also Norfolk Naval Shipyard, Portsmouth, Virginia, 35 FLRA 1069, 1077 (1990) ("[T]he right to representation under section 7114(a)(2)(B) attaches only . . . upon a valid request by the affected employee.").

In our view, the Union's exceptions constitute mere disagreement with the Arbitrator's finding that the grievant did not request Union representation. Disagreement with the Arbitrator's evaluation of evidence and findings and conclusions based thereon provides no basis for finding the award deficient. See SSA, 37 FLRA at 774. Accordingly, the exception does not demonstrate that the award is deficient.

D. Conclusions

The Union has not demonstrated that the Arbitrator's award is deficient on any grounds set forth in section 7122(a) of the Statute. Accordingly, we will deny the exceptions.

V. Decision

The Union's exceptions are denied.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

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