Devine v. Pastore, 82-1716
| Decision Date | 20 April 1984 |
| Docket Number | No. 82-1716,82-1716 |
| Citation | 732 F.2d 213 |
| Parties | 116 L.R.R.M. (BNA) 2196, 235 U.S.App.D.C. 327 Donald J. DEVINE, Director, Office of Personnel Management, Petitioner, v. Joseph M. PASTORE, Jr., Arbitrator, National Treasury Employees Union, and James Estrella, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of Joseph M. Pastore, Jr., arbitrator.
John M. Rogers, Atty., Dept. of Justice, Washington, D.C., for petitioner. J. Paul McGrath, Asst. Atty. Gen., Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, William Kanter and Carlene V. McIntyre, Attys., Dept. of Justice, Washington, D.C., were on the brief, for petitioner. Wendy M. Keats and Howard S. Scher, Attys., Dept. of Justice, Washington, D.C., also entered appearances for petitioner.
Richard S. Edelman, Washington, D.C., for respondents. Robert M. Tobias, John F. Bufe, Lois G. Williams and Sharyn Danch, Washington, D.C., were on the brief, for respondents.
Before BORK and SCALIA, Circuit Judges, and WILLIAMS, * Senior District Judge.
Opinion for the Court filed by Circuit Judge SCALIA.
Petitioner, Director of the Office of Personnel Management, seeks review of an order of arbitrator Joseph M. Pastore, Jr., mitigating the penalty of removal imposed by the Customs Service against James Estrella, a Customs Inspector, for the theft of merchandise entrusted to him. Because we find that the arbitrator erred in making his own assessment of an appropriate penalty rather than merely determining whether the penalty imposed by the agency was arbitrary or capricious; and may also have committed the error of considering the disciplinary factors set forth in the collective bargaining agreement controlling, to the exclusion of other factors permitted by federal personnel law; we grant the petition for review and remand the case to the arbitrator.
James Estrella was a Customs Inspector assigned to the Maersk Terminal Wharf, Port Newark, New Jersey. He had been a Customs Inspector for four of his nearly thirty years of government employment. Customs Inspectors are responsible for the administration and enforcement of the laws governing the import and export of merchandise; they operate independently, under only limited general supervision. On August 29, 1980, security officers for Maersk Lines observed Estrella remove from the cargo area a shirt worth approximately $14 at retail and place it in his car. Following an investigation, and Estrella's response to the charges, the Customs Service issued an order removing Estrella from his position, effective April 9, 1981.
The national collective bargaining agreement negotiated between the United States Customs Service and the National Treasury Employees Union ("NTEU"), Estrella's collective bargaining representative, contains a grievance procedure and a procedure for submitting unresolved grievances to arbitration. It also contains provisions relating to the discipline of employees and the factors management should weigh in determining an appropriate penalty. Estrella filed a grievance relating to his dismissal on April 20, 1981. When this could not be resolved informally, the NTEU invoked arbitration on his behalf. The parties selected Joseph M. Pastore, Jr., to serve as arbitrator.
Both the Customs Service and the NTEU introduced evidence concerning whether Estrella had taken the shirt, and argument concerning whether the penalty of removal was appropriate. Both parties 1 agreed that the appropriateness of the penalty should be judged by the following question which was derived from the contract's discipline terms:
Was the removal of the grievant in violation of the contractual requirements for removal only for such cases as will promote the efficiency of the Service; discipline to be progressive in nature; and like penalties for like offenses and, if so, what shall the remedy be?
In re Arbitration between the National Treasury Employees Union and the United States Customs Service, Initial Opinion and Award at 5 (Jan. 26, 1982) (Pastore, Arb.) (emphasis added).
The arbitrator found on January 26, 1982, that Estrella had placed the shirt in his car for his own use, and that although Estrella's actions "did tend to impair the efficiency of the Service," his removal was not consistent with the contractual policies of progressive discipline and like penalties for like offenses. Id. at 25. The arbitrator also found the action inconsistent with his own interpretation of the agency's Table of Offenses and Discipline. Id. Accordingly, he mitigated Estrella's discipline to a thirty-one day suspension.
On March 5, 1982, the Office of Personnel Management ("OPM") intervened to request the arbitrator to reconsider. OPM argued, as it has in this court, that the arbitrator erred in failing to apply the "arbitrary, capricious, or clearly erroneous" standard in reviewing the agency's decision. The arbitrator denied OPM's reconsideration request on May 20, 1982. The opinion on reconsideration again reviewed the evidence supporting the penalty and reaffirmed that the removal sanction was not justified under the contractual tests. In re Arbitration Between the National Treasury Employees Union and the United States Customs Service, Arbitrator's Response to OPM Request for Reconsideration at 6 (May 20, 1982) (Pastore, Arb.) (hereinafter cited as "Opinion on Reconsideration").
Section 7121 of the civil service law, 5 U.S.C. Sec. 7121(f) (1982), authorizes the Director of the Office of Personnel Management to seek judicial review of the decisions of arbitrators in the same manner as he is empowered by Sec. 7703 to seek review of decisions of the Merit Systems Protection Board ("MSPB"), id. at Sec. 7703. The Director may petition for review of those orders having a "substantial impact" on the operation of the civil service system. The granting of such a petition is at the discretion of the court. Id. at Sec. 7703(d). 2 Our consideration of this case persuades us that the resolution of the issues it presents can have a substantial impact on civil service law, and the case is therefore appropriate for review. We are faced with the question, however, of whether the OPM petition for review is timely.
Section 7703(b) states that a petition for review must be filed within thirty days after the date the petitioner receives notice of the final decision appealed from. As noted above, here OPM did not seek review of the decision in the original arbitration (to which OPM had not been a party), but first intervened and requested the arbitrator to reconsider. This course was followed in reliance upon this court's language in Devine v. Goodstein, 669 F.2d 736 (D.C.Cir.1981), which suggested that OPM must intervene and seek reconsideration before it can petition for review of an arbitrator's decision, just as it must do before petitioning for review of an MSPB decision in a case to which it is not a party. See 5 U.S.C. Sec. 7703(d) (1982). The opinion stated that "[b]ecause the Director did not intervene in the matter when it was before the arbitrator, he petitioned the arbitrator for reconsideration as required by Sec. 7703(d)." 669 F.2d at 736 (dictum) (emphasis added).
In Devine v. White, 697 F.2d 421 (D.C.Cir.1983), decided after this petition for review had been filed, we addressed the issue of the timing of appeals from the decisions of arbitrators, holding that OPM was neither required nor permitted to ask the arbitrator to reconsider his decision, and that such action would not toll the thirty-day limit. Id. at 433. Applying that holding to this case would make OPM's June 25, 1982 petition for review of the arbitrator's January 26, 1982 decision out of time. In Devine v. White, however, we excused OPM's noncompliance with the time requirements, noting that OPM had acted in reliance upon the "misleading signals" given in Devine v. Goodstein, and that its petition was timely when analyzed against that mistaken standard. 697 F.2d at 433. Since the same circumstances exist here, the argument that this petition is out of time must be rejected. 3
The Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111 (), established alternative procedures for review of agency actions removing employees. An employee has the option of pursuing the Act's appellate procedures by taking his appeal to the MSPB, or he may pursue the negotiated grievance procedures contained in the employee's collective bargaining agreement. 5 U.S.C. Sec. 7121(e)(1) (1982). Estrella initiated the latter procedure by filing a grievance. Grievance procedures, typically culminating in arbitration, and MSPB review differ in many respects. Arbitration is recognized as "faster, cheaper, less formal, more responsive to industrial needs, and more conducive to the preservation of ongoing employment relations." Devine v. White, supra, 697 F.2d at 435. While undoubtedly hoping to encourage employee selection of the grievance-arbitration process, Congress did not wish that choice to be made on the basis of a predictable difference in substantive outcome. To the contrary, it envisioned a system that would, as between arbitration and MSPB procedures, "promote consistency ... and ... avoid forum shopping." H.R.REP. NO. 1717, 95th Cong., 2d Sess. 157, reprinted in 1978 U.S.CODE CONG. & AD.NEWS 2723, 2860, 2891 (). This court has previously noted that substantial disuniformity between the review powers of arbitrators and of the MSPB would frustrate congressional intent. See Local 2578, American Federation of Government Employees v. General Services Administration, 711 F.2d 261, 265 (D.C.Cir.1983).
One of the areas in which uniformity is required is the standard of review applied by the decisionmaker. The statute itself, 5...
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