Devine v. Nutt

• Decision Date: 22 September 1983
• Docket Number: No. 83-589,83-589
• Citation: 718 F.2d 1048
• Parties: 115 L.R.R.M. (BNA) 2427 Donald J. DEVINE, Petitioner, v. Allison E. NUTT, et al., Respondents. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1048

718 F.2d 1048

115 L.R.R.M. (BNA) 2427

Donald J. DEVINE, Petitioner, v. Allison E. NUTT, et al., Respondents.

Appeal No. 83-589.

United States Court of Appeals Federal Circuit.

Sept. 22, 1983.

George M. Beasley, III, Washington, D.C., argued for petitioner.

Charles A. Hobbie, Washington, D.C., argued for respondents.

Allison E. Nutt, respondent, pro se.

Before DAVIS, NICHOLS, BALDWIN, KASHIWA and MILLER, Circuit Judges.

DAVIS, Circuit Judge.

Donald J. Devine, Director of the Office of Personnel Management, brings this petition for review of an arbitration award, issued by respondent Nutt, pursuant to 5 U.S.C. Sec. 7703(d) (1982). ¹ Petitioner also named the American Federation of Government Employees (the union) and the Government Services Administration (the employing agency) as respondents. Director Devine urges us to reverse the arbitrator's award, which mitigated the employing agency's removal of grievants-employees Wilson and Rogers to two-week suspensions without pay. The union, in turn, urges that we deny the petition for review, on the ground that it was untimely filed, and, in any event, because we have discretion to decline the appeal. On the merits, the union urges us to uphold the award.

As the following discussion shows, we find petitioner's submission to be timely filed and we exercise our discretion to grant petitioner's request for review. We affirm the arbitrator's award as to Wilson, but modify his award with respect to Rogers.

I

The facts do not provide an example of model conduct by government employees. Grievants Wilson and Rogers were employed by the Government Services Administration as Federal Protective Service (FPS) officers in the Denver, Colorado area. On January 7, 1982, Rogers, while on patrol in an official government vehicle, drove to his residence in a nearby suburb and picked up several cans of beer at his supervisor's request; he then returned to the FPS command center and delivered the beer to his supervisor. The supervisor consumed the beer and then left the empty cans at the command post when he went off duty. Alarmed at the prospect of discovery, the supervisor later telephoned Wilson, who was then on duty at the command post, instructing Wilson to alter the monitor tapes of telephone conversations between the command post and patrolling FPS officers to include a spurious explanation for the presence of the empty cans in the command post. Wilson complied with the supervisor's request.

Subsequently, an FPS official, who was monitoring the tapes for other purposes, discovered irregularities in the tapes which led her to believe that Wilson and the supervisor had attempted to edit them in an attempt to conceal the consumption of the beer at the command post. Special agents of the GSA commenced an investigation of the incident. Two such agents confronted Rogers at his home and requested him to accompany them to a local police station for a "non-custodial" interrogation concerning the irregularities. The agents took notes throughout the interview. At no time was Rogers informed that he was entitled to have a union representative present at the interview. ² The same special agents later interviewed Wilson in a similar fashion; they did not advise Wilson of his right to representation at the investigatory interview. Approximately one month after these sessions, the special agents met separately with each of the grievants and asked them to sign affidavits composed from the agents' notes taken in the previous interviews. The grievants complied with the agents' request; during these later interviews, they once again were not alerted to their right to union representation as specified in the collective bargaining agreement.

On April 2, nearly three months after the alleged incidents of wrongdoing, both grievants received proposed notices of removal from their positions. After receiving written responses to the charges, the employing agency issued a removal notice to Wilson for falsification of tape recordings and attempting to conceal activities of record. Rogers received a removal notice for falsification of records, failure to report irregularities, and use of a government vehicle for non-official purposes.

Both grievants requested arbitration of their removals, as they were entitled to do under their union's collective bargaining contract. The arbitrator (respondent Nutt) found that the grievants committed the alleged acts of wrongdoing. ³ He concluded, however, that the grievants "were not given an opportunity to have a [union] representative present" as required by the collective bargaining agreement, though he also determined that the grievants were not "unaware of their right to representation during an investigatory interview." The arbitrator also agreed with the union's contention that the agency violated Article XXVII, Section 3 ⁴ of a supplement to the collective bargaining agreement by permitting an unreasonable period of time to elapse between the issuance of the proposed notices of removal and the date when the agency first learned of the offense. ⁵ The arbitrator declared, on the other hand, that the union did not claim or demonstrate any prejudice to the grievants due to the failure to have union representation or to the "inordinate delay" in the issuance of the notices of proposed removal. But the arbitrator concluded that "[s]olely because of the agency's pervasive failure to comply with the due process requirements of the agreement," ⁶ the grievants' removal was not for just cause. The award reduced the removals to two-week suspensions without pay.

The arbitrator issued his award on July 16 and subsequently issued a revised award on July 31. ⁷ Petitioner received the notice of award on August 12 and filed a request for reconsideration of the award with the arbitrator on September 13, pursuant to his understanding of 5 U.S.C. Sec. 7703(d) (1982). See supra note 1. On October 13, the arbitrator denied reconsideration in a terse statement which petitioner received on October 15. Then, on November 14, petitioner filed his request to this court for judicial review of the arbitrator's award.

II

At the outset, the union argues that petitioner failed to file his request for reconsideration of the arbitrator's award and his petition for review in this court in a timely fashion. In an earlier order, another panel of this court held that the petition for review in this case was timely filed because Director Devine was entitled to seek reconsideration by the arbitrator. Devine v. Nutt, No. 83-589 (Fed.Cir. Apr. 12, 1983) (order). ⁸ We now find the union's remaining contention on timeliness--relating to the timeliness of petitioner's request for reconsideration--to be meritless.

The Director received the arbitrator's revised award on August 12, 1982. We have previously decided that the time for filing a request for reconsideration "runs from the date the Director receives notice of the decision of the ... arbitrator ...." Devine v. Sutermeister, No. 83-813 (Fed.Cir. June 2, 1983) (order). Petitioner's request for reconsideration by the arbitrator was filed on Monday, September 13, 1982. A cursory reading of the rule governing computation of time reveals that the petition was timely filed--the weekend preceding petitioner's filing could not be included in the 30-day required period. See Fed.R.App.P. 26(a). We therefore hold that petitioner's request for reconsideration of the arbitrator's award was timely.

III

We must also decide whether this court should exercise its discretion to review the arbitrator's award. See 5 U.S.C. Sec. 7703(d) (1982), supra note 1. The statute authorizes the Director of OPM to request judicial review of an arbitrator's decision if he believes that the arbitrator erroneously interpreted civil service statutes or regulations--with the result that the decision "will have a substantial impact" on civil service law. See id.; Devine v. White, 697 F.2d 421, 434 (D.C.Cir.1983). Of course, petitioner's assessment of substantial impact is not binding on this court. In determining whether we should exercise our discretion, we must balance the desirability of review against the traditional labor policy of judicial deference to arbitrators' decisions. See United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424 (1960); United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 569, 80 S.Ct. 1343, 1347, 4 L.Ed.2d 1403 (1960); White, supra, 697 F.2d at 434-36.

We find it appropriate to exercise our discretion to consider the merits of the petition in this case. This conclusion is buttressed by the District of Columbia Circuit's recent decision in White, supra. Here, as there, the controversy between the parties does not proceed primarily from the arbitrator's factfinding or his evaluation of the language contained in the collective bargaining agreement. Rather, the key issue in this case, as in White, is the applicability of the "harmful error" standard contained in 5 U.S.C. Sec. 7701(c)(2)(A) (1982) ⁹ in adverse action proceedings that are brought to arbitration pursuant to 5 U.S.C. Sec. 7121(e) (1982). That issue is one of first impression in this court; its resolution indisputably will have a substantial impact upon civil service law. Employees who wish to appeal an agency's decision to discipline or remove them from service may choose arbitration, rather than an appearance before the Merit Systems Protection Board, depending upon the applicability of the "harmful error" standard in arbitration proceedings. Cf. White, supra, 697 F.2d at 440-41.

We should also exercise jurisdiction here in order to settle a related issue of substantial importance to civil service law--the proper place of external (e.g., statutory) law in adverse action arbitration. See id., 697 F.2d at 438. Judicial deference to an arbitral award may be inappropriate when the award is in apparent...