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,