[ v06 p408 ]
06:0408(73)AR
The decision of the Authority follows:
6 FLRA No. 73 NAVY EXCHANGE, NAVAL STATION, SAN DIEGO, CALIFORNIA Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, INTERDEPARTMENTAL LOCAL 3723, AFL-CIO Union Case No. O-AR-56 DECISION THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF ARBITRATOR LLOYD H. BAILER 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, THIS CASE CONCERNS A STATEMENT BY THE UNION IN ITS NEWSLETTER. THE ACTIVITY FILED A GRIEVANCE ALLEGING THAT "BY PRINTING MALICIOUS STATEMENTS IN ITS LOCAL NEWSLETTER, 'THE STEWARD,' (THE UNION) HAS CAUSED UNREPAIRABLE (SIC) HARM IN THE RELATIONSHIP BETWEEN NAVY EXCHANGE EMPLOYEES AND MANAGEMENT." THE GRIEVANCE ALLEGED THAT BY PUBLISHING THIS STATEMENT /1/ THE UNION HAD VIOLATED THE PARTIES' COLLECTIVE BARGAINING AGREEMENT. THE UNION CLAIMED THAT THE ACTIVITY'S COMPLAINT WAS NOT GRIEVABLE AND THE MATTER WAS ULTIMATELY SUBMITTED TO ARBITRATION. THE ARBITRATOR STATED THE ISSUES AS FOLLOWS: HAS THE EMPLOYER PRESENTED A GRIEVABLE MATTER? IF SO, WHAT DISPOSITION SHOULD BE MADE OF THIS GRIEVANCE? DETERMINING THAT THE PARTIES' AGREEMENT DID NOT PRECLUDE MANAGEMENT GRIEVANCES, THE ARBITRATOR FOUND THAT THE ACTIVITY'S COMPLAINT WAS GRIEVABLE AND ARBITRABLE. ON THE MERITS OF THE GRIEVANCE, THE ARBITRATOR DETERMINED THAT THE NEWSLETTER STATEMENT WAS WITHOUT FOUNDATION AND WAS CONTRARY TO THE SPIRIT OF THE COLLECTIVE BARGAINING AGREEMENT. HOWEVER, HE RULED THAT HE WAS UNABLE TO AWARD A REMEDY BECAUSE THE STATEMENT DID "NOT EXCEED THE BOUNDS OF THE 'FREE SPEECH' RIGHTS OF THE UNION." ACCORDINGLY, THE ARBITRATOR ISSUED THE FOLLOWING AWARD: THE EMPLOYER HAS RAISED A GRIEVABLE MATTER WHICH MAY BE PRESENTED TO ARBITRATION. THE UNION STATEMENT IN ITS NEWSLETTER ABOUT WHICH THE EMPLOYER COMPLAINS IS UNFOUNDED, BUT THERE IS NO BASIS FOR A REMEDY. THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /2/ AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425. /3/ THE AGENCY DID NOT FILE AN OPPOSITION. IN ITS FIRST EXCEPTION THE UNION CONTENDS THAT THE AWARD IS BASED ON A MISINTERPRETATION OF EXECUTIVE ORDER 11491, AS AMENDED. IN SUPPORT OF THIS EXCEPTION, THE UNION REFERS TO STATEMENTS CONCERNING EXECUTIVE ORDER 11491 MADE BY THE ARBITRATOR IN THE COURSE OF FINDING THAT MANAGEMENT COULD GRIEVE IN THIS CASE AND ASSERTS THAT THESE STATEMENTS ARE "CLEARLY ERRONEOUS" IN LIGHT OF CERTAIN DECISIONS ISSUED UNDER THE ORDER. /4/ THE AUTHORITY FINDS THAT THIS EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT. NONE OF THE DECISIONS CITED BY THE UNION NOR ANY LAW SPECIFICALLY PRECLUDED MANAGEMENT FROM FILING A GRIEVANCE IN THIS PARTICULAR CASE. MOREOVER, IT IS NOTED THAT, WHILE THE ARBITRATOR REFERRED TO PROVISIONS OF E.O. 11491, HIS DECISION FINDING THAT MANAGEMENT COULD GRIEVE IN THIS CASE WAS PRIMARILY BASED ON HIS FINDINGS THAT THE PARTIES' COLLECTIVE BARGAINING AGREEMENT DID NOT PRECLUDE MANAGEMENT FROM FILING GRIEVANCES. ACCORDINGLY, THE ARBITRATOR'S AWARD THAT "(T)HE EMPLOYER HAS RAISED A GRIEVABLE MATTER" INVOLVED HIS INTERPRETATION OF THE PARTIES' AGREEMENT AND THE UNION'S EXCEPTION THEREFORE CONSTITUTES NOTHING MORE THAN DISAGREEMENT WITH THAT INTERPRETATION. /5/ CONSEQUENTLY, 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 RULES AND REGULATIONS. UNITED STATES ARMY MISSILE MATERIEL READINESS COMMAND (USAMIRCOM) AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1858, AFL-CIO, 2 FLRA NO. 60(1980). IN ITS SECOND EXCEPTION THE UNION CONTENDS THAT "CONSIDERATION OF THE GRIEVANCE CONSTITUTES PRIOR RESTRAINT." IN SUPPORT OF THIS EXCEPTION, THE UNION ARGUES THAT THE NEWSLETTER WAS PROTECTED UNDER THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION AND "TO ALLOW ANY 'TRIAL' ON THE LEGITIMACY OF WHAT IT CONTAINS, OF NECESSITY, WILL CAST A CHILL ON THE UNION'S FREEDOM OF EXPRESSION." HOWEVER, THE UNION'S EXCEPTION AND ASSERTIONS PROVIDE NO BASIS FOR FINDING THE AWARD DEFICIENT. THE UNION FAILS TO ESTABLISH THAT THE ARBITRATOR'S "CONSIDERATION OF THE GRIEVANCE" IN ANY MANNER "CONSTITUTES (A) PRIOR RESTRAINT." THE ARBITRATOR DID NOT IMPOSE A RESTRAINT ON THE PUBLICATION OF THE NEWSLETTER BEFORE IT WAS PUBLISHED. HE DID NOT SUPPRESS THE RELEASE AND DISSEMINATION OF THAT NEWSLETTER TO ITS RECIPIENTS. INSTEAD, THE ARBITRATOR CONSIDERED THE ACTIVITY'S GRIEVANCE PROTESTING THE DAMAGE ASSERTEDLY CAUSED BY THE PUBLICATION AND DISSEMINATION OF THE NEWSLETTER. FURTHERMORE, THE UNION FAILS TO ESTABLISH THAT THE ARBITRATOR'S CONSIDERATION OF THE PUBLISHED NEWSLETTER, TO DETERMINE WHETHER IT EXCEEDED THE LIMITS AND BOUNDS OF PROTECTED EXPRESSION, IMPROPERLY "CHILL(S)" THE UNION'S FREEDOM OF EXPRESSION IN VIOLATION OF "THE FIRST AMENDMENT RIGHTS OF THE UNION AND OF EMPLOYEES IN THE AREA OF FREE SPEECH." THEREFORE, THE UNION'S SECOND EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S RULES. FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD IS SUSTAINED. ISSUED, WASHINGTON, D.C., AUGUST 12, 1981 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES: --------------- /1/ THE STATEMENT APPEARED ON THE FRONT PAGE OF THE NEWSLETTER UNDER THE HEADING "NEWS OF INTEREST" AND READ AS FOLLOWS: SEEMS LIKE NAVY EXCHANGE MANAGEMENT AT 32ND STREET INSISTS ON THREATENING ITS EMPLOYEES AND TREATING THEM AS SECOND CLASS CITIZENS WHO HAVE NO RIGHTS AND MAY BE MANIPULATED AT MANAGEMENT'S WHIMS. AS LONG AS THEY (MANAGEMENT) KEEP THINKING IN THAT MANNER, WE WILL KEEP ON FILING UNFAIR LABOR PRACTICES/GRIEVANCES WHICHEVER IS NECESSITATED BY THE OFFENSE COMMITTED. /2/ 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 CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR REGULATIONS. /3/ ALTHOUGH THE UNION'S EXCEPTIONS WERE FILED AT THE TIME THE AUTHORITY'S INTERIM RULES AND REGULATIONS WERE IN EFFECT, THE FINAL RULES AND REGULATIONS, 5 CFR PART 2425(1981), ARE IDENTICAL TO THE INTERIM RULES. /4/ THE ARBITRATOR'S REFERENCES TO THE ORDER, AND CONSEQUENTLY THE UNION'S EXCEPTIONS THERETO, WERE THE RESULT OF THE FACT THAT THE PARTIES' AGREEMENT WAS NEGOTIATED UNDER E.O. 11491 AND THE AGREEMENT SPECIFICALLY STATED THAT IT WAS TO BE ADMINISTERED IN ACCORDANCE WITH THE PROVISIONS OF THE ORDER. /5/ IN LIGHT OF THIS DECISION, THE AUTHORITY NEED NOT REACH THE QUESTION OF WHETHER THE STATUTE OR E.O. 11491 IS MORE PROPERLY APPLICABLE TO THIS CASE WHICH AROSE AFTER THE EFFECTIVE DATE OF THE STATUTE. HOWEVER, IT IS NOTED, CONTRARY TO THE APPARENT ASSERTION OF THE UNION, THAT NOTHING IN E.O. 11491 OR DECISIONS ISSUED THEREUNDER REQUIRED AN AGREEMENT TO CONTAIN AN EXPRESS AFFIRMATIVE PROVISION AUTHORIZING MANAGEMENT GRIEVANCES.