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(1980).
 THEREFORE, 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.
 
    IN ITS SECOND EXCEPTION THE UNION CONTENDS THE AWARD IS CONTRARY AND
 CONTRADICTORY TO THE FACTS ESTABLISHED AT THE HEARING, SPECIFICALLY
 REGARDING THE AWARENESS OF THE INVOLVED EMPLOYEES OF THE CHANGED POLICY
 IN PROCEDURE INVOLVED IN THIS MATTER.  THE UNION ALSO REFERS TO SPECIFIC
 STATEMENTS OF THE ARBITRATOR IN HIS OPINION AND ASSERTS THAT THE
 ARBITRATOR MADE "HIGHLY SPECULATIVE" STATEMENTS AND "ENTER(ED) THE REALM
 OF SPECULATION."
 
    THE UNION'S SECOND EXCEPTION CONSTITUTES DISAGREEMENT WITH THE
 ARBITRATOR'S FINDINGS OF FACT AND WITH HIS REASONING AND CONCLUSIONS.
 IT IS WELL ESTABLISHED THAT SUCH ASSERTIONS PROVIDE NO BASIS FOR FINDING
 AN AWARD DEFICIENT.  E.G., DEPARTMENT OF THE AIR FORCE CIVILIAN
 PERSONNEL BRANCH, CARSWELL AIR FORCE BASE, TEXAS AND AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, LOCAL 1364, 5 FLRA NO. 7(1981).  THEREFORE, THE
 UNION'S SECOND 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.
 
    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 16, 1981
 
                       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 CONSIDERS NECESSARY, CONSISTENT WITH
 APPLICABLE LAWS, RULES, OR REGULATIONS.