34:0154(34)AR - U.S. DEPARTMENT OF THE NAVY and INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS DISTRICT LODGE 110 -- 1990 FLRAdec AR
[ v34 p154 ]
The decision of the Authority follows:
34 FLRA NO. 34 U.S. DEPARTMENT OF THE NAVY and INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS DISTRICT LODGE 110 0-AR-1560 DECISION January 9, 1990 Before Chairman McKee and Members Talkin and Armendariz. I. Statement of the Case This matter is before the Authority on exceptions to the award of Arbitrator George R. Gray. The Arbitrator found that the action of the Department of the Navy (the Agency) in suspending the grievant for 3 days for insubordinate behavior was not unreasonable. Accordingly, the Arbitrator denied the grievance. The International Association of Machinists and Aerospace Workers, District Lodge 110 (the Union) filed exceptions 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 Agency did not file an opposition to the exceptions. We conclude that the Union has not established that the Arbitrator's award is contrary to law, rule, regulation, or that it is deficient on other grounds as set forth in section 7122(a) of the Statute. Consequently, we deny the Union's exceptions. II. Background and Arbitrator's Award On July 21, 1987, the grievant was advised by the Agency that he was to be suspended for 3 days because of three instances of insubordination. The first two instances involved the grievant's failure to properly return a parking decal to the Agency's Security Office, as requested by his supervisors on May 26 and June 3. Instead the parking decal was taken from him by a security guard on June 4. The third instance of insubordinate behavior involved the grievant's failure to pay two unsettled travel claims when requested to do so by his supervisor on June 5. The grievant did go to the Agency's travel section to discuss this problem. However, he stated that he could not pay the claims and, in fact, he did not pay the travel claims voluntarily. Instead the money was deducted from his salary pursuant to Naval Travel Instructions. A grievance was filed alleging that the 3-day suspension was not consistent with the "just cause" provision of the parties' collective bargaining agreement. The Agency denied the grievance and the matter was submitted to arbitration. The parties agreed that the issue before the Arbitrator was "(w)hether the Agency had just cause to discipline (the grievant) with a three day suspension based on charges of insubordinate behavior on May 26th, June 3rd and June 5th, 1987." Award at 2. During the arbitration hearing, the Union asserted that the Agency had not met its obligations under 5 U.S.C. 7503(c) to produce all the material relevant to the action being taken against the grievant as requested by the Union. 5 U.S.C. 7503(c) states: Copies of the notice of proposed action, the answer of the employee if written, a summary thereof if made orally, the notice of decision and reasons therefor, and any order effecting the suspension, together with any supporting material, shall be maintained by the agency and shall be furnished to the Merit Systems Protection Board upon its request and to the employee affected upon the employee's request. The Union alleged that at the meeting regarding the proposed disciplinary action, the grievant and his representative requested all material relied on by the Agency in taking the action against the grievant. The Union stated that the Agency produced a file which the grievant and his representative were allowed to read and review. According to the Union, this file did not include a written recommendation by the grievant's immediate supervisor that the grievant be given a written reprimand for his insubordinate acts. The Union stated that it did not know of the existence of this recommendation until the recommendation was presented at the arbitration hearing. The Union argued before the Arbitrator that had it known of the existence of the supervisor's written recommendation, it would have altered its position in presenting the case to the Commanding Officer. The Arbitrator found that 5 U.S.C. 7503(c) was not relevant to his decision. The Arbitrator concluded that the fact that the Union was deprived of the supervisor's written recommendation did not alter the fact that the Agency took action to suspend the grievant for 3 days based on the grievant's behavior and "it is that action which is the issue of this arbitration." Award at 7. The Arbitrator found that the supervisors had the right to direct the grievant to turn in his parking decal and to resolve unsettled travel claims in a prompt time frame and in a specific manner. Award at 8. The Arbitrator further found that the grievant's failure to turn in his parking decal and settle his travel claims constituted insubordination because the grievant was given specific directives by his supervisors which he refused to carry out. The grievant claimed that he attempted to resolve both the parking decal controversy and the travel claims. The Arbitrator, however, found that the grievant's efforts seemed to be aimed primarily at circumventing the directives of his supervisors. Award at 9. The Arbitrator concluded that the 3-day suspension given to the grievant was not unreasonable, because insubordination is a serious matter and the suspension was not inconsistent with the standards set out in the parties' collective bargaining agreement. Award at 11, 12. III. Exceptions The Union contends that the Arbitrator's award should be overturned and that the grievant should be made whole by ordering the Agency to repay the 3-day suspension and to expunge the charge from the grievant's personnel records. The Union bases its exceptions on the fact that neither the Union nor the grievant was supplied with the recommendation of the grievant's supervisor that he be given a written reprimand for his insubordinate behavior before the meeting where the proposed 3-day suspension against the grievant was discussed. The Union contends that the Agency's failure to supply this information was a violation of 5 U.S.C. 7503(c). The Union also contends that due to this asserted violation, the grievant was denied due process because the Union was prevented from constructing a more in-depth defense. The Union contends that the Arbitrator should have dismissed the case because of a violation of law, 5 U.S.C. 7503(c), and due process. IV. Analysis and Conclusion The Arbitrator addressed the Union's claim that the Agency violated 5 U.S.C. 7503(c) by failing to provide the supervisor's recommendation that the grievant receive a written reprimand for his insubordinate behavior. The Arbitrator found that any position taken by the Union would not have altered the fact that the Agency determined that a 3-day suspension was the appropriate discipline for the grievant's insubordinate behavior. The Arbitrator also determined that the correctness of the Union's argument regarding section 7503(c) was not dispositive because the issue before him was the appropriateness of the 3-day suspension. We conclude that the Union has failed to establish that the Arbitrator award is deficient on any of the grounds set forth in section 7122(a) of the Statute: that is, that the award is contrary to any law, rule, or regulation or that it is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations cases. The Union has failed to show that the Arbitrator's determination regarding 5 U.