Navy Exchange, Naval Station, San Diego, California (Activity) and American Federation of Government Employees, Interdepartmental Local 3723, AFL-CIO (Union)

 



[ v06 p408 ]
06:0408(73)AR
The decision of the Authority follows:


 6 FLRA No. 73
 
 NAVY EXCHANGE, NAVAL STATION,
 SAN DIEGO, CALIFORNIA
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 INTERDEPARTMENTAL LOCAL
 3723, AFL-CIO
 Union
 
                                            Case No. O-AR-56
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR LLOYD H. BAILER 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, THIS CASE CONCERNS A STATEMENT BY THE
 UNION IN ITS NEWSLETTER.  THE ACTIVITY FILED A GRIEVANCE ALLEGING THAT
 "BY PRINTING MALICIOUS STATEMENTS IN ITS LOCAL NEWSLETTER, 'THE
 STEWARD,' (THE UNION) HAS CAUSED UNREPAIRABLE (SIC) HARM IN THE
 RELATIONSHIP BETWEEN NAVY EXCHANGE EMPLOYEES AND MANAGEMENT." THE
 GRIEVANCE ALLEGED THAT BY PUBLISHING THIS STATEMENT /1/ THE UNION HAD
 VIOLATED THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.  THE UNION
 CLAIMED THAT THE ACTIVITY'S COMPLAINT WAS NOT GRIEVABLE AND THE MATTER
 WAS ULTIMATELY SUBMITTED TO ARBITRATION.  THE ARBITRATOR STATED THE
 ISSUES AS FOLLOWS:
 
    HAS THE EMPLOYER PRESENTED A GRIEVABLE MATTER?  IF SO, WHAT
 DISPOSITION SHOULD BE MADE OF
 
    THIS GRIEVANCE?
 
    DETERMINING THAT THE PARTIES' AGREEMENT DID NOT PRECLUDE MANAGEMENT
 GRIEVANCES, THE ARBITRATOR FOUND THAT THE ACTIVITY'S COMPLAINT WAS
 GRIEVABLE AND ARBITRABLE.  ON THE MERITS OF THE GRIEVANCE, THE
 ARBITRATOR DETERMINED THAT THE NEWSLETTER STATEMENT WAS WITHOUT
 FOUNDATION AND WAS CONTRARY TO THE SPIRIT OF THE COLLECTIVE BARGAINING
 AGREEMENT.  HOWEVER, HE RULED THAT HE WAS UNABLE TO AWARD A REMEDY
 BECAUSE THE STATEMENT DID "NOT EXCEED THE BOUNDS OF THE 'FREE SPEECH'
 RIGHTS OF THE UNION." ACCORDINGLY, THE ARBITRATOR ISSUED THE FOLLOWING
 AWARD:
 
    THE EMPLOYER HAS RAISED A GRIEVABLE MATTER WHICH MAY BE PRESENTED TO
 ARBITRATION.  THE
 
    UNION STATEMENT IN ITS NEWSLETTER ABOUT WHICH THE EMPLOYER COMPLAINS
 IS UNFOUNDED, BUT THERE
 
    IS NO BASIS FOR A REMEDY.
 
    THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /2/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425.
  /3/ THE AGENCY DID NOT FILE AN OPPOSITION.
 
    IN ITS FIRST EXCEPTION THE UNION CONTENDS THAT THE AWARD IS BASED ON
 A MISINTERPRETATION OF EXECUTIVE ORDER 11491, AS AMENDED.  IN SUPPORT OF
 THIS EXCEPTION, THE UNION REFERS TO STATEMENTS CONCERNING EXECUTIVE
 ORDER 11491 MADE BY THE ARBITRATOR IN THE COURSE OF FINDING THAT
 MANAGEMENT COULD GRIEVE IN THIS CASE AND ASSERTS THAT THESE STATEMENTS
 ARE "CLEARLY ERRONEOUS" IN LIGHT OF CERTAIN DECISIONS ISSUED UNDER THE
 ORDER.  /4/ THE AUTHORITY FINDS THAT THIS EXCEPTION PROVIDES NO BASIS
 FOR FINDING THE AWARD DEFICIENT.  NONE OF THE DECISIONS CITED BY THE
 UNION NOR ANY LAW SPECIFICALLY PRECLUDED MANAGEMENT FROM FILING A
 GRIEVANCE IN THIS PARTICULAR CASE.  MOREOVER, IT IS NOTED THAT, WHILE
 THE ARBITRATOR REFERRED TO PROVISIONS OF E.O. 11491, HIS DECISION
 FINDING THAT MANAGEMENT COULD GRIEVE IN THIS CASE WAS PRIMARILY BASED ON
 HIS FINDINGS THAT THE PARTIES' COLLECTIVE BARGAINING AGREEMENT DID NOT
 PRECLUDE MANAGEMENT FROM FILING GRIEVANCES.  ACCORDINGLY, THE
 ARBITRATOR'S AWARD THAT "(T)HE EMPLOYER HAS RAISED A GRIEVABLE MATTER"
 INVOLVED HIS INTERPRETATION OF THE PARTIES' AGREEMENT AND THE UNION'S
 EXCEPTION THEREFORE CONSTITUTES NOTHING MORE THAN DISAGREEMENT WITH THAT
 INTERPRETATION.  /5/ CONSEQUENTLY, 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.  UNITED STATES
 ARMY MISSILE MATERIEL READINESS COMMAND (USAMIRCOM) AND AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1858, AFL-CIO, 2 FLRA NO.
 60(1980).
 
    IN ITS SECOND EXCEPTION THE UNION CONTENDS THAT "CONSIDERATION OF THE
 GRIEVANCE CONSTITUTES PRIOR RESTRAINT." IN SUPPORT OF THIS EXCEPTION,
 TH