Department of the Air Force, McGuire Air Force Base (Activity) and American Federation of Government Employees, Local No. 1778 (Union)

 



[ v06 p283 ]
06:0283(50)AR
The decision of the Authority follows:


 6 FLRA No. 50
 
 DEPARTMENT OF THE AIR
 FORCE, MCGUIRE AIR FORCE
 BASE
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL NO. 1778
 Union
 
                                            Case No. O-AR-125
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR G. ALLAN DASH, JR. 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 ACTIVITY ISSUED LETTERS OF REPRIMAND TO THE GRIEVANTS AS THE
 RESULT OF ALLEGED REFUSALS TO COMPLY WITH PROPER WORK ORDERS.  THE UNION
 FILED A GRIEVANCE CONTENDING THAT THE ISSUANCE OF THE LETTERS OF
 REPRIMAND WAS IN VIOLATION OF THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT AND THE MATTER WAS ULTIMATELY SUBMITTED TO ARBITRATION.
 
    THE ARBITRATOR FOUND THAT THE IMPOSITION OF THE LETTERS OF REPRIMAND
 DID NOT VIOLATE THE PARTIES' AGREEMENT.  HE FOUND THAT "THE GRIEVANTS'
 UNSUSTAINABLE REFUSAL TO CARRY OUT THE ORDERS GIVEN THEM . . .
 CONSTITUTED SIGNIFICANT MISCONDUCT THAT CALLED FOR THE IMPOSITION OF
 SEVERE DISCIPLINARY ACTION." HE ALSO FOUND THAT, CONTRARY TO THE
 CONTENTIONS OF THE UNION, THE ISSUANCE OF THE LETTERS DID NOT VIOLATE
 AIR FORCE REGULATION 40-750.  THE ARBITRATOR FURTHER FOUND THAT THE TWO
 GRIEVANTS, IN EFFECT, USED THEIR OFFICIAL UNION CAPACITIES AS A CLOAK TO
 TEST THE PROPRIETY OF A SUPERVISORY ORDER, IMPROPERLY CONCLUDING THAT
 UNION POSITIONS WOULD PROTECT THEM FROM ANY POTENTIAL DISCIPLINE.
 HOWEVER, ACCORDING TO THE ARBITRATOR, REFUSAL OF A SUPERVISORY ORDER IS
 NOT A "PROTECTED ACTIVITY" FOR A UNION OFFICIAL UNDER THE AGREEMENT OR
 ANY FEDERAL STATUTE THAT MAKES SUCH UNION OFFICIAL IMMUNE FROM
 APPROPRIATE DISCIPLINE.  NOR, ACCORDING TO THE ARBITRATOR, WAS THERE ANY
 PROOF IN THE RECORD THAT THE OFFICIAL UNION CAPACITIES OF THE TWO
 GRIEVANTS CONTRIBUTED IN ANY FASHION TO THE DISCIPLINE IMPOSED AGAINST
 THEM FOR REFUSING TO CARRY OUT PROPER WORK ORDERS.  FOR THE FOREGOING
 REASONS, THE ARBITRATOR 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 RULES AND REGULATIONS, 5 CFR PART 2425.
  THE ACTIVITY FILED AN OPPOSITION.
 
    IN ITS FIRST EXCEPTION THE UNION CONTENDS THE AWARD IS CONTRARY TO
 AIR FORCE REGULATION 40-750, DEALING WITH CERTAIN RESPONSIBILITIES OF
 SUPERVISORS AND OPERATING OFFICIALS.  IN SUPPORT OF THIS EXCEPTION, THE
 UNION ESSENTIALLY CONTENDS THAT THE ACTION TAKEN AGAINST THE GRIEVANTS
 WAS OVERLY HARSH AND NOT WITHIN THE GUIDELINES OF THE CITED REGULATION.
 
    PURSUANT TO SECTION 7122(A)(1) OF THE STATUTE, THE AUTHORITY WILL
 FIND AN AWARD DEFICIENT IF THE AWARD IS CONTRARY TO "LAW, RULE, OR
 REGULATION." WITHOUT DECIDING WHETHER THE REGULATION CITED BY THE UNION
 IN SUPPORT OF ITS EXCEPTION CONSTITUTES A "RULE OR REGULATION" WITHIN
 THE MEANING OF SECTION 7122(A)(1) OF THE STATUTE, THE AUTHORITY FINDS
 THAT IN THIS CASE THE UNION HAS IN NO MANNER DEMONSTRATED THAT THE AWARD
 IS CONTRARY TO THE REGULATION.  IT IS NOTED THAT THE ARBITRATOR
 SPECIFICALLY FOUND THAT THE TERMS OF THE PARTIES' AGREEMENT DID NOT
 EXTEND TO AN EMPLOYEE THE RIGHT TO REFUSE TO CARRY OUT A WORK ORDER
 "PROVIDED ITS PERFORMANCE DOES NOT EXPOSE SUCH EMPLOYEE TO A CLEAR
 DANGER TO LIFE OR HEALTH OR TO SOMETHING GROSSLY DEMEANING TO HIS
 PERSON" AND THAT THE EMPLOYEES WERE RIGHTLY EXPOSED TO DISCIPLINE FOR
 THEIR REFUSAL TO CARRY OUT THE WORK ORDER.  MOREOVER, THE ISSUE OF THE
 APPROPRIATENESS OF THE DISCIPLINE IMPOSED WAS SPECIFICALLY ADDRESSED BY
 THE ARBITRATOR IN THE COURSE OF RESOLVING THE DISPUTE.  THE UNION IS
 SIMPLY ATTEMPTING TO RELITIGATE THE MERITS OF THE GRIEVANCE BEFORE THE
 AUTHORITY.  SUCH ASSERTIONS PROVIDE NO BASIS FOR FINDING AN AWARD
 DEFICIENT.  NATIONAL AERONAUTICS AND SPACE ADMINISTRATION AND AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2284, 3 FLRA NO. 35(1