34:0666(114)AR - - VA Medical Center and AFGE Local 2386 - - 1990 FLRAdec AR - - v34 p666



[ v34 p666 ]
34:0666(114)AR
The decision of the Authority follows:


34 FLRA No. 114

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

VETERANS ADMINISTRATION MEDICAL CENTER

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2386, AFL-CIO

0-AR-1672

DECISION

January 31, 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 Mei L. Bickner filed by the American Federation of Government Employees, Local 2386, AFL-CIO (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 Veterans Administration Medical Center (the Agency) filed an opposition to the Union's exceptions.

The grievant was reprimanded for insubordination when he refused to obey an order to wear earplugs. The Union grieved the reprimand. The Arbitrator found that the grievant had been insubordinate and that the reprimand was warranted.

For the reasons stated below, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The Agency's facilities were inspected by the Occupational Safety and Health Administration (OSHA) in November 1987. The OSHA inspection report found that Food Service employees working in the Agency's "Dish and Pot Room" were exposed to noise in excess of 85 decibels. The report directed that a "'hearing conservation program'" be administered and noted that "'replacing the ceiling panels may reduce the noise level below 85 [decibels] and thus eliminate noncompliance with the hearing conservation program.'" Award at 3.

In January 1988, the Agency's Safety Officer directed the Chief of Dietetic Service to issue earplugs to all employees working in the affected area until acoustical ceiling tiles could be installed. The Food Service Chief held two meetings with some of the affected employees and announced that the failure to wear earplugs at all times would result in disciplinary action. The Agency provided earplugs to employees. Award at 4.

On January 19, 1988, the grievant refused his acting supervisor's order to wear earplugs. Later that day, the grievant met separately with two management officials concerning the earplug policy. The grievant stated that he would not wear the earplugs because the matter was not discussed with the Union and nothing was in writing. The grievant was warned that he had to wear the earplugs or he would be "'written up'" if he refused. Award at 5.

The following day, the grievant was observed not wearing the earplugs. The grievant's acting supervisor was directed by the Food Service Chief to "'write up'" the grievant for refusing to wear them. On January 28, the Chief of Dietetic Services issued the grievant a reprimand for misconduct. The misconduct was identified in later meetings as insubordination. The Union filed a grievance and the matter was submitted to arbitration.

The issues before the Arbitrator were whether the reprimand had been issued for "just and sufficient cause" and, if not, what was the appropriate remedy. Before the Arbitrator, the Union argued that the reprimand was not issued for just and sufficient cause. The Union maintained that the Agency's order requiring the grievant to wear earplugs violated the parties' collective bargaining agreement because the Agency had failed to notify and bargain with the Union concerning the earplug policy.

The Arbitrator determined that the grievant's refusal to follow a direct order from a supervisor constituted insubordination and that the reprimand was warranted.

The Arbitrator stated that the issue before him was whether the reprimand was issued for just and sufficient cause, not the legality of the Agency's order. Award at 2, 15-16. Nonetheless, the Arbitrator found that the Union had not proven that the order was unlawful. Award at 16. The Arbitrator asserted that the legality of the Agency's policy "may or may not be subject to reasonable debate, but it is hardly a case of such flagrant and obvious illegality that it warrants exception to the well established principle requiring employees to obey orders first, and to grieve later." Award at 17.

The Arbitrator further found that the Agency did not violate any of the provisions of the parties' collective bargaining agreement, including Article 6, Section 6, requiring notification to the Union of changes in conditions of employment. The Arbitrator found that the Union had received oral notice of the change regarding the wearing of earplugs. Award at 18.

The Arbitrator concluded that the discipline of the grievant "was for just and sufficient cause" and dismissed the grievance.

III. Positions of the Parties

A. The Union

The Union contends that the Arbitrator's "statement of law that [e]mployees must always obey orders first and grieve later and that the only exceptions to that principle are when management directs an employee to engage in a flagrantly illegal act or when the management policy is in violation of collective bargaining laws" is contrary to law and to arbitral authority. Exceptions at 1. Citing awards by other arbitrators, the Union argues that "[a]rbitral authority is to the effect that an employee may, without fear of discipline, violate an order which is itself in violation of the employee's contractually guaranteed rights." Exceptions at 2. The Union also claims that the grievant had a right to disobey the order because the agency "violated the law when it implemented its new ear plug policy without first negotiating over it." Exceptions at 4.

B. The Agency

The Agency argues that its order to wear earplugs did not violate law. The Agency contends that the legality of the earplug order was not the issue presented for arbitration. The Agency asserts that the Union has failed to establish a basis for its exceptions.

IV. Analysis and Conclusions

We conclude that the Union's exceptions provide no basis for finding the award deficient.

The Arbitrator found that the grievant's refusal to follow a direct order from a supervisor constituted insubordination and that the reprimand was warranted. The Arbitrator concluded that the well-established principle requiring employees to obey orders first and to grieve later applied. He indicated that the circumstances of this case did not permit the grievant to engage in what is commonly referred to as "sel