46:0481(42)AR - - Navy, Naval Air Warfare Center, Aircraft Division, Warminster, PA and AFGE Local 1928 - - 1992 FLRAdec AR - - v46 p481
[ v46 p481 ]
The decision of the Authority follows:
46 FLRA No. 42
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE NAVY
NAVAL AIR WARFARE CENTER
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
ORDER DISMISSING EXCEPTIONS
November 5, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Robert H. Mount filed by the Agency 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 Union filed an opposition to the Agency's exceptions.
The Arbitrator mitigated the Agency's discipline of a firefighter by reducing his suspension from 10 working days of 24-hour duration to 10 working days of 8-hour duration and awarding backpay for the resulting difference in lost pay. The Agency contends that the award is based on a nonfact and is contrary to an Agency regulation.
We conclude that we are without jurisdiction under section 7122(a) of the Statute to review the Agency's exceptions. Accordingly, we will dismiss the exceptions.
II. Background and Arbitrator's Award
The Agency suspended the grievant for 9 working days for insubordination and 1 working day for failure to carry out a work assignment. The grievant is a firefighter whose work schedule consists of three 24-hour tours of duty each week, totalling 144 hours in a 2-week pay period. The grievant filed a grievance protesting the suspension. The grievance was not resolved and was submitted to arbitration.
The Arbitrator agreed with the Agency that the grievant had committed the offenses charged and that he was subject to discipline. However, the Arbitrator disagreed with the Agency concerning the amount of time for which the grievant should be suspended. Noting the definition of "day" contained in the Agency's regulation governing discipline, the Arbitrator found that a suspension for 10 working days on a 24-hour workday schedule was inequitable and that the discipline should be mitigated to equal the equivalent discipline for an employee on an 8-hour workday schedule. Accordingly, the Arbitrator made the following award:
The [g]rievance is denied. The [discipline] is mitigated to eighty (80) hours. [The grievant] is to be made whole for one hundred sixty hours (160) less any monies earned outside the Agency during the last 160 hours of his suspension.
III. Positions of the Parties
A. The Agency
The Agency contends that the award is deficient because it is based on a nonfact. The Agency states that firefighters, such as the grievant, "work a schedule consisting of three 24-hour tours of duty (72 hours) during each week or 144 hours during a two-week pay period." Exceptions at 4. The Agency asserts that the Arbitrator misunderstood how firefighters' 24-hour schedules affect the computation of their pay and that "firefighters are not paid for each hour they are in a duty status on the same basis as regular employees." Id.
The Agency concedes that the Arbitrator had the authority to mitigate the discipline given the grievant. The Agency maintains that although the Arbitrator intended to reduce the grievant's suspension to the equivalent of a 10-day suspension for a regular employee, he failed to do that because he "based his mitigation on a nonfact, specifically, his erroneous misunderstanding of the work schedule of firefighters and the method under which they are compensated for the hours they are in a duty status." Id. at 6.
The Agency also contends that the award is contrary to the Agency's regulation governing discipline. The Agency maintains that the regulation defines "day" as "calendar day" in accordance with 5 C.F.R. §§ 752.201(d)(1) and 752.402(a) and "the Department of the Navy policy on suspensions . . . ." Id. The Agency asserts that the Arbitrator provided no explanation for his conclusion "that the term calendar day could be interpreted to mean an eight-hour day rather than a full 24-hour day." Id. at 10.
B. The Union
The Union denies that the Arbitrator's award is based on a nonfact and asserts that the Agency failed to present the regulation on which it relies to the Arbitrator at the hearing. The Union also denies that the award is contrary to the Agency's regulation and contends that the Agency is merely disagreeing with the Arbitrator's interpretation of a phrase that is not fully defined and is subject to interpretation.
IV. Analysis and Conclusions
We find that we are without jurisdiction under section 7122(a) of the Statute to review the Agency's exceptions.
Section 7122(a) provides, in pertinent part, as follows:
Either party to arbitration under this chapter may file with the Authority an exception to any arbitrator's award pursuant to the arbitration (other than an award relating to a matter described in section 7121(f) of this title).
The matters described in section 7121(f) include serious adverse actions covered under 5 U.S.C. § 7512, such as suspensions for more than 14 days. See, for example, American Federation of Government Employees, Council 236 and General Services Administration, Region 9, 39 FLRA 896 (1991) (AFGE, Council 236). Review of arbitration awards relating to such matters, like review of decisions of the Merit Systems Protection Board (MSPB), may be obtained by filing an appeal with the U.S. Court of Appeals for the Federal Circuit in accordance with 5 U.S.C. § 7703.
For purposes of determining the length of a suspension within the meaning of 5 U.S.C. § 7512, 5 C.F.R. §§ 752.201(d)(1) and 752.402(a) define "day" as a calendar day. The MSPB has held that a suspension imposed on 14 non-consecutive days must be regarded as a suspension of more than 14 calendar days and, therefore, is an appealable adverse action. Klimek v. Department of the Army, 3 MSPR 139, 140-42 (1980).
The Arbitrator's award relates to the grievant's suspension for 10 working days. The Agency states in its exceptions that the grievant works on "a schedule consisting of three 24-hour tours of duty (72 hours) during each week or 144 hours during a two-week pay period." Exceptions at 4. In other words, "during a two[-]week period the grieva