Federal Correctional Institution (Activity) and American Federation of Government Employees, Local 1286, AFL-CIO (Union) 



[ v03 p688 ]
03:0688(111)AR
The decision of the Authority follows:


 3 FLRA No. 111
 
 FEDERAL CORRECTIONAL INSTITUTION
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1286
 Union
 
                                            Case No. 0-AR-71
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR EDWIN R. RENDER 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, THE GRIEVANCE INVOLVED THE ACTIVITY'S
 DECISION TO SUSPEND THE GRIEVANT (WHO WAS ALSO THE LOCAL UNION
 PRESIDENT) FOR 21 DAYS BECAUSE OF EIGHT ALLEGED INCIDENTS OF MISCONDUCT.
  THE ARBITRATOR STATED THAT THE GENERAL ISSUE IN THE CASE WAS "WHETHER
 THE DISCIPLINE WAS IMPOSED FOR JUST AND SUFFICIENT CAUSE . . . " WITHIN
 THE MEANING OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.  THE
 ARBITRATOR ALSO NOTED THAT HE HAD TO ADDRESS THE UNION'S ARGUMENT THAT
 THE ACTIVITY HAS DISCRIMINATED AGAINST THE GRIEVANT BECAUSE OF HIS UNION
 ACTIVITY, AND THAT THE ACTIVITY'S ENTIRE COURSE OF CONDUCT WAS EVIDENCE
 OF SUCH DISCRIMINATION.
 
    THE ARBITRATOR DETERMINED THAT SINCE THE CASE INVOLVED EIGHT
 DIFFERENT INCIDENTS, IT WAS NECESSARY FOR HIM TO REVIEW EACH OF THE
 EIGHT ALLEGATIONS AND TO MAKE A FINDING AS TO EACH. THEREAFTER HE
 DISCUSSED THE EVIDENCE WITH RESPECT TO EACH INCIDENT AND MADE SEPARATE
 FINDINGS OF FACT AND CONCLUSIONS ON EACH ONE.  THE ARBITRATOR FOUND ". .
 . THAT THE GRIEVANT WAS GUILTY OF MISCONDUCT WITH REGARD TO . . ." FIVE
 OF THE EIGHT CHARGES AND REDUCED THE TOTAL SUSPENSION FROM 21 DAYS TO 7
 DAYS WITH A WRITTEN WARNING FOR ONE OF THE CHARGES.
 
    IN REACHING HIS CONCLUSION THE ARBITRATOR STATED THAT HE:
 
    . . .BELIEVES THAT THE UNION HAS ESTABLISHED THAT SOME OF THE ACTION
 WHICH WAS TAKEN
 
    AGAINST THE GRIEVANT INVOLVED DISCRIMINATION. . . . HOWEVER, THE
 FINDING THAT THE EMPLOYER'S
 
    ACTION WAS MOTIVATED BY REASONS OTHER THAN THOSE STATED IN THE FORMAL
 CHARGES AGAINST THE
 
    GRIEVANT DOES NOT IN AND OF ITSELF PRECLUDE AN ARBITRATOR FROM
 IMPOSING DISCIPLINE WHERE THE
 
    GRIEVANT HAS ENGAGED IN MISCONDUCT.
 
    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 RULES AND REGULATIONS, 45 F.R. 3513.
 
    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 DEFICIENT
 BECAUSE THE ARBITRATOR EXCEEDED HIS AUTHORITY BY SEPARATING THE CHARGES
 AND IMPOSING INDIVIDUAL DISCIPLINARY SUSPENSIONS FOR INDIVIDUAL CHARGES.
  IT IS THE UNION'S POSITION THAT BECAUSE THE AGENCY IMPOSED ONE
 "INSEPARABLE DISCIPLINARY ACTION" FOR ALL EIGHT CHARGES, THE ARBITRATOR
 CANNOT ALTER THAT PENALTY WITHOUT VIOLATING ARTICLE 30, SECTION F OF THE
 CONTRACT, WHICH PROVIDES:
 
    ARTICLE 30-- ARBITRATION
 
    SECTION F. THE ARBITRATOR'S AWARD SHALL BE BINDING ON THE PARTIES.
 HOWEVER, EITHER PARTY,
 
    THROUGH ITS HEADQUARTERS, MAY FILE EXCEPTIONS TO AN AWARD WITH THE
 FEDERAL LABOR RELATIONS
 
    COUNCIL.  THE ARBITRATOR SHALL HAVE NO POWER TO ADD TO, SUBTRACT
 FROM, DISREGARD, ALTER, OR
 
    MODIFY ANY OF THE TERMS OF (1) THIS AGREEMENT OR (2) PUBLISHED
 FEDERAL PRISON SYSTEM POLICIES
 
    OR REGULATIONS.
 
    THE UNION'S FIRST EXCEPTION STATES A GROUND ON WHICH THE AUTHORITY
 WILL FIND AN AWARD DEFICIENT UNDER SECTION 7122(A)(2) OF THE STATUTE.
 THAT IS, THE AUTHORITY WILL FIND AN AWARD DEFICIENT WHERE IT APPEARS, ON
 THE BASIS OF THE EXCEPTION, THAT THE ARBITRATOR EXCEEDED HIS OR HER
 AUTHORITY BY RENDERING AN AWARD IN DISREGARD OF A PLAIN AND SPECIFIC
 LIMITATION ON THAT AUTHORITY.  DEPARTMENT OF THE AIR FORCE, MCGUIRE AIR
 FORCE BASE AND LOCAL 1778, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 CASE NO. 0-AR-3, 3 FLRA NO. 38 (MAY 23, 1980).  HOWEVER, IN THIS CASE
 THE UNION HAS FAILED TO DEMONSTRATE THAT THE ARBITRATOR EXCEEDED HIS
 AUTHORITY.  THE UNION HAS NOT DEMONSTRATED THAT THE ARBITRATOR IN ANY
 MANNER EXCEEDED HIS AUTHORITY WHEN, IN ORDER TO ANSWER THE QUESTION
 BEFORE HIM OF WHETHER THE DISCIPLINE IMPOSED ON THE GRIEVANT WAS FOR
 JUST CAUSE, HE EXAMINED EACH OF THE INDIVIDUAL CHARGES AND THEREAFTER,
 FINDING JUST CAUSE FOR SOME CHARGES BUT NOT FOR OTHERS, AS A REMEDY
 ADJUSTED ACCORDINGLY THE DISCIPLINE IMPOSED BY THE ACTIVITY.  THE UNION
 CITES NO CONTRACT PROVISION OR OTHER RESTRICTION WHICH WOULD PREVENT THE
 ARBITRATOR FROM APPROACHING THE CASE IN THIS MANNER OR FROM FASHIONING
 THE REMEDY HE DID.  FURTHER, THE UNION DOES NOT DEMONSTRATE HOW THE
 ARBITRATOR, IN ARRIVING AT HIS AWARD, IN ANY MANNER ADDED TO, SUBTRACTED
 FROM, DISREGARDED, ALTERED, OR MODIFIED ANY OF THE TERMS OF THE
 COLLECTIVE BARGAINING AGREEMENT.  THEREFORE, THE UNION'S FIRST EXCEPTION
 PROVIDES NO BASIS FOR FINDING AN AWARD DEFICIENT UNDER 5 U.S.C. 7122(A)
 AND SECTION 2425.3 OF THE AUTHORITY'S RULES AND REGULATIONS.
 
    IN ITS SECOND EXCEPTION THE UNION CONTENDS THAT THE AWARD DOES NOT
 DRAW ITS ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT.  IN SUPPORT
 OF THIS EXCEPTION THE UNION ASSERTS THAT THE GRIEVANT ". . . WAS
 DISCIPLINED AND TREATED UNEQUALLY AS REGARDS OTHER EMPLOYEES WHO WERE
 SIMILARLY SITUATED BECAUSE HE WAS ACTIVE IN UNION AFFAIRS AND BECAUSE HE
 BECAME THE PRESIDENT OF THE LOCAL UNION." THE UNION ARGUES THAT SINCE
 THE ARBITRATOR FOUND SOME ANTI-UNION DISCRIMINATION HE WAS PROHIBITED BY
 THE CONTRACT FROM IMPOSING ANY DISCIPLINARY SANCTIONS AGAINST THE
 EMPLOYEE AND BY DOING SO HE "VIOLATE(D) THE REQUIREMENTS OF JUST AND
 'SUFFICIENT CAUSE'."
 
    THE UNION'S SECOND EXCEPTION STATES A GROUND ON WHICH THE AUTHORITY
 WILL FIND AN AWARD DEFICIENT UNDER SECTION 7122(A)(2) OF THE STATUTE.
 UNITED STATES ARMY MISSILE MATERIEL READINESS COMMAND (USAMIRCOM) AND
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1858, AFL-CIO, CASE
 NO. 0-AR-7, 2 FLRA NO. 60 (JAN 17, 1980).  HOWEVER, THE UNION DOES NOT
 DEMONSTRATE IN ITS EXCEPTION THAT THIS AWARD FAILS TO DRAW ITS ESSENCE
 FROM THE CONTRACT.  THE UNION HAS NOT DEMONSTRATED THAT THE ARBITRATOR'S
 AWARD CANNOT IN ANY RATIONAL WAY BE DERIVED FROM THE CONTRACT;  OR IS SO
 UNFOUNDED IN REASON AND FACT, SO UNCONNECTED WITH THE WORDING AND
 PURPOSE OF THE CONTRACT AS TO MANIFEST AN INFIDELITY TO THE OBLIGATION
 OF THE ARBITRATOR;  OR THAT IT EVIDENCES A MANIFEST DISREGARD OF THE
 CONTRACT;  OR THAT, ON ITS FACE, THE AWARD DOES NOT PRESENT A PLAUSIBLE
 INTERPRETATION OF THE CONTRACT.  SEE UNITED STATES ARMY MISSILE MATERIEL
 READINESS COMMAND, SUPRA, AND PRIVATE SECTOR CASES CITED THEREIN.
 INSTEAD, THE UNION'S ARGUMENTS IN SUPPORT OF THIS EXCEPTION CONSTITUTE
 DISAGREEMENT WITH THE REASONING EMPLOYED BY THE ARBITRATOR IN REACHING
 HIS AWARD ON THE MERITS THAT SOME OF THE DISCIPLINE IMPOSED ON THE
 GRIEVANT WAS FOR JUST CAUSE AND THEREAFTER FASHIONING A REMEDY
 ACCORDINGLY.  THE AUTHORITY WILL NOT FIND AN AWARD DEFICIENT WHERE IT
 APPEARS FROM THE EXCEPTION THAT THE APPEALING PARTY IS DISAGREEING WITH
 THE REASONING EMPLOYED BY THE ARBITRATOR ON THE MERITS OF THE ISSUE
 BEFORE HIM.  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 2094 AND VETERANS ADMINISTRATION HOSPITAL, CASE NO.0-AR-24, 2 FLRA NO.
 88 (FEB.  22, 1980).  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 AND REGULATIONS.
 
    FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, WE HEREBY SUSTAIN THE ARBITRATOR'S
 AWARD.
 
    ISSUED, WASHINGTON, D.C., JULY 18, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ 5 U.S.C. 7122(A) PROVI