[ v04 p112 ]
04:0112(19)AR
The decision of the Authority follows:
4 FLRA No. 19 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1923, AFL-CIO Union and SOCIAL SECURITY ADMINISTRATION, HEADQUARTERS BUREAUS AND OFFICES Activity Case No. 0-AR-42 DECISION THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF ARBITRATOR JACOB SEIDENBERG FILED BY THE UNION UNDER SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7122(A)). ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE WHEN THE GRIEVANT WAS SUSPENDED FOR FAILURE TO OBEY A DIRECT ORDER. THE GRIEVANT, A UNION STEWARD, CONVENED A MEETING WHICH 19 OF 24 EMPLOYEES IN TWO OF THE ACTIVITY'S WORK UNITS ATTENDED. APPROXIMATELY ONE-HALF HOUR BEFORE THE MEETING BEGAN, THE GRIEVANT HAD INFORMED THE EMPLOYEES' LINE SUPERVISORS THAT CERTAIN EMPLOYEES IN THEIR UNITS WANTED TO MEET WITH HER AND SHE GAVE THE SUPERVISORS A LIST OF THE NAMES OF THESE EMPLOYEES. THEREAFTER, ONE OF THE SUPERVISORS BECAME AWARE OF THE TOTAL NUMBER OF EMPLOYEES WHO HAD LEFT THEIR WORK SITE TO ATTEND THE MEETING AND NOTIFIED THE SECTION CHIEF WHO COMMUNICATED WITH THE DIVISION DIRECTOR, WHO HAD BEEN UNAWARE OF THE MEETING. THE DIVISION DIRECTOR ORDERED THE GRIEVANT TO TERMINATE THE MEETING BECAUSE A SIGNIFICANT AMOUNT OF WORK WAS BEING IMPEDED BY THE EMPLOYEES' ABSENCE. THE MEETING WAS NOT TERMINATED. CONSEQUENTLY, THE GRIEVANT WAS SUSPENDED FOR FIVE DAYS AND A SUBSEQUENT GRIEVANCE WAS FILED. AT THE ARBITRATION HEARING, THE ISSUE CONSIDERED BY THE ARBITRATOR WAS (WHETHER) THE SUSPENSION OF (THE GRIEVANT WAS) FOR SUCH GOOD AND SUFFICIENT CAUSE AS SHALL PROMOTE THE EFFICIENCY OF THE SERVICE? THE ARBITRATOR CONCLUDED THAT "THE PROBATIVE EVIDENCE PROVES THERE WAS JUST AND SUFFICIENT CAUSE TO DISCIPLINE THE GRIEVANT FOR HER CONDUCT ON THE DAY IN QUESTION." HE FOUND THAT ONCE THE DIVISION DIRECTOR HAD INSTRUCTED THE GRIEVANT AND THE EMPLOYEES THAT THE EMPLOYEES SHOULD RETURN TO THEIR WORK SITE, THE GRIEVANT HAD NO VALID BASIS FOR NOT TERMINATING THE MEETING AND HER REFUSAL TO DO SO WAS "A SUBVERSION OF THE EMPLOYER-UNION RELATIONSHIP." HE POINTED OUT THAT IN SUCH CIRCUMSTANCES THE UNION AND THE EMPLOYEES SHOULD HAVE COMPLIED AND THEN CHALLENGED THE CORRECTNESS AND PROPRIETY OF MANAGEMENT'S DIRECTIVE THROUGH THE CONTRACTUAL OR STATUTORY MACHINERY. HE ALSO FOUND THAT THERE WAS NOTHING ON THE RECORD TO SUPPORT THE UNION'S CONTENTION THAT BECAUSE THE GRIEVANT WAS ACTING AS A UNION OFFICER HER CONDUCT WAS PRIVILEGED AND SHE WAS IMMUNE FROM DISCIPLINE FOR REFUSING TO COMPLY WITH A DIRECTIVE FROM A RANKING SUPERVISOR, AND THAT HER UNION RESPONSIBILITIES GAVE HER NO AUTHORITY WILFULLY TO IGNORE THE DIRECTOR'S DIRECTIVE. THEREFORE, THE ARBITRATOR SUSTAINED THE DISCIPLINE AND DENIED THE GRIEVANCE. THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/ AND PART 2425 OF THE AUTHORITY'S INTERIM RULES AND REGULATIONS, 44 F.R. 44766. THE AGENCY FILED AN OPPOSITION. THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE UNION'S EXCEPTIONS, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION, OR ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS CASES. IN ITS FIRST EXCEPTION THE UNION CONTENDS THAT THE AWARD IS CONTRARY TO THE PROVISIONS OF THE NEGOTIATED AGREEMENT. IN SUPPORT OF THIS EXCEPTION THE UNION CONTENDS THE NEGOTIATED AGREEMENT DOES NOT ALLOW A HIGHER LEVEL SUPERVISOR TO WITHDRAW PERMISSION GIVEN BY A FIRST LINE SUPERVISOR FOR EMPLOYEES TO MEET WITH THEIR UNION REPRESENTATIVE. RATHER THE UNION ASSERTS, THE SUPERVISOR MAY "TEMPORARILY DELAY THE CONTACT IN AN EMERGENCY SITUATION." IN THIS CASE, THE UNION ARGUES, THERE WAS NO EVIDENCE OF AN EMERGENCY. ADDITIONALLY, THE UNION REFERS TO EVIDENCE IT PRESENTED BEFORE THE ARBITRATOR, WHICH, ACCORDING TO THE UNION, "WAS NEITHER REBUTTED BY THE ADMINISTRATION NOR DENIED BY THE ARBITRATOR," TO PROVISIONS OF THE AGREEMENT WHICH IT ALLEGES THE ARBITRATOR "FAILED TO CONSIDER," AND TO CERTAIN OF THE ARBITRATOR'S FINDINGS OF FACT WITH WHICH THE UNION EITHER "DISAGREES" OR CONTENDS THAT THE ARBITRATOR "ERRED." THE UNION'S FIRST EXCEPTION AND ITS ASSERTIONS IN SUPPORT THEREOF CONSTITUTE DISAGREEMENT WITH THE ARBITRATOR'S FINDINGS OF FACT AND HIS REASONING AND CONCLUSIONS OF THE MERITS OF THE ISSUE BEFORE HIM. THUS, THE UNION, HAVING HAD ITS GRIEVANCE DENIED BY THE ARBITRATOR, IS NOW ATTEMPTING TO RELITIGATE THE MERITS OF ITS CASE BEFORE THE AUTHORITY. IT IS WELL ESTABLISHED THAT THE AUTHORITY WILL NOT REVIEW AN ARBITRATOR'S AWARD WHERE IT APPEARS THAT THE EXCEPTION CONSTITUTES DISAGREEMENT WITH THE REASONING EMPLOYED BY THE ARBITRATOR ON THE MERITS OF THE ISSUE BEFORE HIM. VETERANS ADMINISTRATION MEDICAL CENTER AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1985, 3 FLRA NO. 91 (1980); VETERANS ADMINISTRATION HOSPITAL, PERRY POINT, MARYLAND AND LOCAL 331, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 3 FLRA NO. 34 (1980); FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION AND FEDERAL AVIATION ADMINISTRATION, ALBUQUERQUE AIRWAY FACILITIES SECTOR, SOUTHWEST REGION, 2 FLRA NO. 85 (1980). THERFORE, THE UNION'S FIRST EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S INTERIM RULES AND REGULATIONS. THE UNION, IN ITS SECOND EXCEPTION, CONTENDS THE DECISION AND AWARD ARE CONTRARY TO DECISIONS OF FEDERAL COURTS IN PRIVATE SECTOR LABOR MANAGEMENT RELATIONS. IN SUPPORT OF THIS CONTENTION THE UNION REFERS TO CERTAIN FEDERAL COURT CASES WHICH THE UNION SAYS SUPPORT ARGUMENTS PROFFERED TO THE ARBITRATOR THAT THE GRIEVANT'S BEHAVIOR WAS PROTECTED AND THUS NOT PUNISHABLE BY THE AGENCY. THE UNION ARGUES THAT THE ARBITRATOR NEVER "DISCUSSED OR CONSIDERED THESE CASES NOR APPLIED THE PRINCIPLES THEY REPRESENT." THE UNION'S SECOND EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT. THE UNION HAS NOT SHOWN HOW THE PRIVATE SECTOR CASES IT CITES, WHICH ALL INVOLVED ORDERS OF THE NATIONAL LABOR RELATIONS BOARD IN UNFAIR LABOR PRACTICE CASES, ARE IN ANY MANNER APPOSITE TO THE REVIEW OF AN ARBITRATION AWARD. THUS NONE OF THE CITED CASES INVOLVED FEDERAL COURT REVIEW OF AN ARBITRATION AWARD IN THE PRIVATE SECTOR AND THEREFORE CANNOT BE READ AS ESTABLISHING "GROUNDS . . . APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS" IN REVIEWING ARBITRATION AWARDS. AS IN ITS FIRST EXCEPTION, THE UNION APPEARS TO BE ATTEMPTING TO RELITIGATE THE MERITS OF ITS CASE BEFORE THE AUTHORITY. THUS THE UNION PRESENTED TO THE ARBITRATOR THE SAME ARGUMENTS IT IS MAKING HEREIN, THAT UNDER THESE CASES THE GRIEVANT'S CONDUCT WAS PRIVILEGED, AND THE ARBITRATOR FOUND, WHILE NOT SPECIFICALLY REFERRING TO THE CASES BY NAME, THAT "NOTHING IN THE RECORD . . . (SUPPORTS) THE UNION'S CONTENTION THAT BECAUSE THE GRIEVANT WAS ACTING AS A UNION OFFICER HER CONDUCT WAS PRIVILEGED AND SHE WAS IMMUNE FROM DISCIPLINE FOR REFUSING TO COMPLY WITH A DIRECTIVE FROM A RANKING SUPERVISOR." THEREFORE, THE UNION'S SECOND EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT AFTER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S INTERIM RULES AND REGULATIONS. IN ITS THIRD EXCEPTION THE UNION CONTENDS THAT THE DECISION AND AWARD ARE INCONSISTENT WITH PREVIOUS ARBITRATION AWARDS. IN SUPPORT OF THIS EXCEPTION, THE UNION REFERS TO SEVERAL PRIVATE SECTOR ARBITRATION AWARDS WHICH, ACCORDING TO THE UNION, SUPPORT THE PREMISE THAT "THE ADMINISTRATION WAS PRECLUDED FROM UNILATERALLY IMPOSING DISCIPLINE ON THE GRIEVANT FOR ACTIONS TAKEN WHILE SHE WAS ACTING WITHIN THE SCOPE OF HER ROLE AS A UNION REPRESENTATIVE." THE UNION'S THIRD EXCEPTION DOES NOT CONSTITUTE A BASIS FOR FINDING AN ARBITRATION AWARD DEFICIENT UNDER THE STATUTE. THE UNION'S EXCEPTION DOES NOT STATE A GROUND WHICH HAS PREVIOUSLY BEEN RECOGNIZED IN THE FEDERAL SECTOR AS A BASIS FOR FINDING AN AWARD DEFICIENT, NOR DOES THE UNION CITE ANY PRIVATE SECTOR CASES IN WHICH FEDERAL COURTS HAVE SUSTAINED A CHALLENGE TO AN ARBITRATION AWARD ON THE BASIS THAT THE AWARD WAS INCONSISTENT WITH PREVIOUS ARBITRATION AWARDS. THEREFORE, THE UNION'S THIRD EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S INTERIM RULES AND REGULATIONS. FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2425.4 OF THE AUTHORITY'S INTERIM RULES AND REGULATIONS, WE HEREBY SUSTAIN THE ARBITRATOR'S AWARD. ISSUED, WASHINGTON, D.C., AUGUST 29, 1980 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ 5 U.S.C. 7122(A) PROVIDES: (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE AUTHORITY AN EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN AWARD RELATING TO A MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE). IF UPON REVIEW THE AUTHORITY FINDS THAT THE AWARD IS DEFICIENT-- (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION; OR (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS; THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS CONCERNING THE AWARD AS IT CONSIDERED NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR REGULATIONS.