12:0192(47)AR - Federal Employees MTC and DOD, Navy, Portsmouth Naval Shipyard -- 1983 FLRAdec AR



[ v12 p192 ]
12:0192(47)AR
The decision of the Authority follows:


 12 FLRA No. 47
 
 FEDERAL EMPLOYEES METAL
 TRADES COUNCIL
 Union
 
 and
 
 DEPARTMENT OF DEFENSE,
 DEPARTMENT OF THE NAVY,
 PORTSMOUTH NAVAL SHIPYARD
 Activity
 
                                            Case No. O-AR-311
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Albert G. Murphy filed by the Union under section 7122(a) of
 the Federal Service Labor-Management Relations Statute (the Statute) and
 part 2425 of the Authority's Rules and Regulations.
 
    The dispute in this matter concerns the suspension of the grievant
 for 10 days for entering a restricted area in violation of safety
 regulations.  A grievance was filed and submitted to arbitration
 questioning whether the discipline was handled in accordance with the
 provision of the parties' collective bargaining agreement pertaining to
 union representation and whether the grievant was disciplined for just
 cause.
 
    In agreement with the Union, the Arbitrator determined that under the
 parties' collective bargaining agreement, the statement made by the
 grievant to an investigator of the radiation protection branch could not
 be used as a basis for the suspension of the grievant.  However,
 contrary to the Union's position, the Arbitrator determined that the
 suspension was independently based on a statement of the perimeter
 monitor who was an eyewitness to the event and that this statement
 supported the charge that the grievant had violated the safety
 regulation.  Accordingly, the Arbitrator ruled that there was just cause
 for discipline but that under the circumstances the suspension should be
 reduced to five days.
 
    In its exceptions the Union contends that the Arbitrator exceeded his
 authority and that the award does not draw its essence from the
 agreement and is based on a nonfact.  The Union's position in support of
 its exceptions is essentially that because a statement made by the
 grievant when the grievant had not been afforded union representation
 was relied upon by the Activity as supporting the suspension of the
 grievant, the Arbitrator was precluded from finding that there was just
 cause for the discipline.
 
    The Authority concludes that the exceptions do not establish that the
 award is deficient.  As noted, the Union made essentially the same
 argument to the Arbitrator which he rejected by finding other grounds
 for sustaining the discipline.  In arguing that the discipline could not
 be supported by the statement of the perimeter monitor alone, the Union
 is merely disagreeing with the Arbitrator's reasoning and evaluation of
 evidence and testimony and is attempting to relitiga