34:0659(112)NG - - NATIONAL PARK SERVICE - - 1990 FLRAdec NG - - v34 p659



[ v34 p659 ]
34:0659(112)NG
The decision of the Authority follows:


34 FLRA NO. 112

U.S. DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE
FIRE ISLAND NATIONAL SEASHORE

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 3432

0-AR-1642

DECISION

January 30, 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 Walter L. Eisenberg. The Arbitrator found
that a 5-day suspension of the grievant was for "such cause as to
justify the Agency's disciplinary action against him 'to promote
the efficiency of the Service', in accordance with applicable
law, rule, regulation, and the Basic Agreement." Award at 12.

The American Federation of Government Employees, Local 3432
(the Union) filed exceptions to the award 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 U.S. Department of the Interior, National Park Service, Fire
Island National Seashore (the Agency) filed an opposition to the
exceptions.

We conclude that the Union has not established that the
award is contrary to any law, rule or regulation or that it is
deficient on any other grounds similar to those applied by the
Federal courts in private sector labor relations cases.
Consequently, we deny the Union's exceptions. 

II. Background and Arbitrator's Award

The grievant is a licensed motor boat operator. On May 21,
1987, while filling the fuel tank of an Agency vessel, the
grievant wedged a screwdriver under the nozzle handle of the gas
pump hose, allowing the pump to operate unattended. The grievant
left the vessel, and the nozzle fell out of the gas tank's filler
neck and pumped gasoline onto the deck, floor and other areas of
the unattended boat. An Agency supervisor, who smelled gas and
observed the spill, directed the grievant not to start the boat's
motor and to hose down the boat. After helping the grievant pull
the boat to a bulkhead where a water hose was available, the
supervisor left to take a telephone call. The grievant then
washed down the areas of the boat where the gas had spilled, took
a work crew on board, and transported the crew to Fire Island.

When the boat returned from Fire Island, it was towed to a
ramp and hauled out of the water for inspection. A member of the
repair staff found about 12 gallons of gas and water, but no 
oil, in the boat's rear bilge. The foam around fuel tanks was
covered with gas, creating a "potentially explosive" situation
from any electrical spark. Award at 4. The process of cleaning
the boat and assuring its safety extended over 4 days.

The Superintendent of the Fire Island National Seashore
suspended the grievant for 5 days, based on unsafe operation of
the vessel, under Article 13, Section 1 of the parties'
negotiated agreement. The Union filed a grievance which proceeded
to arbitration.

The Arbitrator denied the grievance. The Arbitrator found
that the Agency had the option to suspend the grievant under the
provisions of either 5 U.S.C., chapter 75, involving discipline
for misconduct, or under 5 U.S.C., chapter 43, concerning
performance-based discipline. Thus, the Arbitrator decided that
the fact that the Agency chose to discipline the grievant under
chapter 75, rather than chapter 43, did not invalidate the
Agency's action.

The Arbitrator then found that the 5-day suspension for
unsafe operation of the vessel was appropriate and reasonable
under the circumstances. The Arbitrator first found that the
composition of the fuel, which contained no oil, found in the
bilges and elsewhere on the boat during inspection and cleaning
established that the fuel was from the original gasoline spill.
The Arbitrator reasoned that, if the fuel had come from
a leak in the boat's fuel line or fuel tank, as alleged by the
Union, the fluid would have been a mixture of gasoline and oil,
because both are combined in the fuel tank to power the boat.

Further, the Arbitrator decided that it was likely that, in
view of the extensive work required to cleanse the boat of the
spilled fuel, the pumping of gasoline into the boat lasted
significantly longer than the few seconds estimated by the
grievant. Moreover, the Arbitrator determined that it was
"evident that the spill involved had created a serious problem,
with or without (the grievant's) knowledge at the time." Award at
10.

The Arbitrator found that the grievant exercised faulty
judgment after the discovery that gasoline was being pumped into
the boat itself rather than into the gas tank. The Arbitrator
noted that the grievant was directed by an Agency official not to
start the engine or create a spark and to hose down the boat. The
Arbitrator found that the grievant "obeyed one of those
instructions but he disobeyed the other. He did hose gas off
various surfaces of the boat, but he did thereafter start the
engines, something he was told not to do." Id. The Arbitrator
concluded that the grievant's actions were inconsistent with safe
boat operation and work practices as required by the grievant's
position description, the applicable performance standards and
provisions of the parties' negotiated agreement. Consequently,
the Arbitrator found that the 5-day suspension was an appropriate
and reasonable penalty.

III. Exceptions

The Union contends that the Arbitrator's award is deficient
because: (1) it is contrary to law, rule and regulation, in that
the grievant was cited for misconduct rather than unacceptable
performance; (2) management did not prove its case by a
preponderance of the evidence; and (3) the Arbitrator misstated
important facts in the award when he failed to note that the
grievant customarily instructed his passengers not to smoke when
on board the boat.

IV. Opposition

The Agency asserts that the award is not contrary to law,
rule or regulation. It also contends that the Agency's case was
proven by a preponderance of the evidence, and that the
Arbitrator did not misstate any important facts in his award.


V. Analysis and Conclusion

We conclude that the Union has failed to establish that the
Arbitrator's award is deficient on any of the grounds described
in section 7122(a) of the Statute. The Union has not established
that the award is contrary to any law, rule or regulation or that
it is deficient on any other grounds similar to those applied by
the Federal courts in private sector labor relations cases.

Initially, we note that the second and third of the Union's
three exceptions do not provide bases for finding the award to be
deficient. That is, these two exceptions, alleging that the
Arbitrator: (1) based his award on something less than a
preponderance of the evidence, and (2) misstated certain facts,
are not "grounds similar to those applied by Federal courts in
private sector labor-management relations" upon which we could
find the award to be deficient. See section 7122(a)(2) of the
Statute.

The second exception, alleging that the award was not based
on a preponderance of the evidence, is an attempt to relitigate
this case before the Authority. This exception constitutes
nothing more than disagreement with the Arbitrator's findings of
fact, reasoning and conclusions, and does not provide a basis for
finding the award deficient. See, for example, Department of the
Army, Headquarters, United States Army Aviation Center, Fort
Rucker, Alabama and American Federation of Government Employees,
Local 1815, 33 FLRA 53 (1988) (exceptions constituting nothing
more than an attempt to relitigate grievance's merits and a
disagreement with arbitrator's findings of fact, reasoning and
conclusions provide no basis for finding award deficient).

The Union's third exception is based on its contention that
the arbitrator "misstated important facts in the decision."
Exceptions at 1. The alleged misstatement concerns the
Arbitrator's statement that "(o)ne of the staff who was a
passenger complained to (the grievant) about a smell of gas and
(the grievant) told the passengers not to smoke." Award at 3. The
Union asserts that the grievant "instructed all employees not to
smoke on the boat everyday, because it was a safety requirement."
Exceptions at 1.

Although the Union contends that the alleged misstatement
concerned an important fact, the Union does not demonstrate--or
contend--that in the absence of the alleged misstatement, the
Arbitrator would have reached a different result. The Union has
not, therefore, demonstrated that the award is based on
a nonfact. We note in this regard that although the Arbitrator
referenced the Union's assertion that the grievant "always told
passengers on his boats not to smoke on board--not only on that
occasion(,)" nothing in the Arbitrator's award leads to the
conclusion that the Arbitrator based his decision in whole or in
part on evaluation of this assertion. Award at 5. Accordingly,
even if we accepted the Union's position that the Arbitrator's
statement in question was erroneous, the error would not warrant
setting aside the award. See, for example, U.S. Department of
Labor and Local 12, American Federation of Government Employees,
24 FLRA 435, 440 (1986) (an award will be found deficient on the
ground that it is based on a nonfact "when it is demonstrated
that the central fact underlying the award is concededly
erroneous and in effect is a gross mistake of fact but for which
a different result would have been reached."). Consequently, we
reject the Union's third exception.

The Union's first exception, alleging that the award
conflicts with law, rule or regulation, states a basis for
finding the award to be deficient under section 7122(a)(1) of the
Statute. However, we find no basis in the Union's argument for
concluding that the Arbitrator erred in determining that
discipline was properly imposed under 5 U.S.C., chapter 75. In a
case such as this, an agency has the authority to take
performance-based disciplinary action under either chapter 43 or
chapter 75. See Lovshin v. Department of the Navy, 767 F.2d 826,
843 (Fed. Cir. 1985). Accordingly, the Union has not shown that
the disciplinary action violated law, rule or regulation.

Consequently, based on the above findings, we will deny the
Uni