American Federation of Government Employees, Local 1923, AFL-CIO (Union) and Social Security Administration, Headquarters Bureaus and Offices (Activity)  

 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.