Portsmouth Naval Shipyard (Activity) and Federal Employees Metal Trades Council, AFL-CIO (Union) 

 5 FLRA No. 28
 
 PORTSMOUTH NAVAL SHIPYARD
 Activity
 
 and
 
 FEDERAL EMPLOYEES METAL
 TRADES COUNCIL, AFL-CIO
 Union
 
                                            Case No. 0-AR-95
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON THE AGENCY'S EXCEPTION TO THE
 AWARD OF ARBITRATOR FRANCES BAIRSTOW FILED UNDER SECTION 7122(A) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7122(A)).
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THE GRIEVANT IS EMPLOYED BY THE
 ACTIVITY AS A RIGGER, BUT AS A QUALIFIED DIVER HE WAS ALSO ROUTINELY
 ASSIGNED TO DIVING DUTIES FOR WHICH HE RECEIVED PREMIUM PAY.  DIVING
 DUTIES ACCOUNTED FOR APPROXIMATELY ONE-THIRD OF HIS WORKING TIME AND
 ONE-THIRD OF HIS ANNUAL PAY.
 
    THE DISPUTE IN THIS MATTER AROSE WHEN THE GRIEVANT WAS DISCIPLINED
 FOR AN INCIDENT THAT OCCURRED WHILE HE WAS PERFORMING DIVING DUTIES.
 THE GRIEVANT WAS CHARGED WITH VIOLATING SAFETY REGULATIONS BY SUGGESTING
 TO ANOTHER EMPLOYEE, WHO WAS NOT A QUALIFIED DIVER, THAT HE DIVE AND
 THEN ASSISTING THAT EMPLOYEE IN DIVING.  AS DISCIPLINE, THE GRIEVANT WAS
 SUSPENDED FOR FIVE DAYS WITHOUT PAY WITH A REPORT OF THE INCIDENT PLACED
 IN HIS PERSONNEL FILE, AND HE WAS REMOVED FROM ALL FUTURE DIVING DUTIES.
  THE GRIEVANT FILED A GRIEVANCE CLAIMING THAT THE DISCIPLINE WAS IN
 VIOLATION OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT PROVISION THAT
 "(D)ISCIPLINARY ACTION SHALL BE TAKEN ONLY FOR JUST CAUSE." THE
 GRIEVANCE WAS SUBMITTED TO ARBITRATION WITH THE ISSUE STATED AS FOLLOWS:
 
    WAS THE GRIEVANT DISCIPLINED FOR JUST CAUSE AND IF NOT, WHAT IS A
 PROPER REMEDY?
 
    THE ARBITRATOR FOUND THAT THE GRIEVANT HAD ACTED IMPROPERLY DURING
 THE DIVING INCIDENT AND THAT HE HAD VIOLATED NORMAL DIVING SAFETY RULES.
  ACCORDINGLY, THE ARBITRATOR CONCLUDED THAT THE SUSPENSION FOR FIVE DAYS
 WITHOUT PAY AND THE PLACING OF A NEGATIVE REPORT IN THE GRIEVANT'S
 PERSONNEL FILE WAS REASONABLE PUNISHMENT FUTURE DIVING DUTIES, THE
 ARBITRATOR CONCLUDED THAT THIS PUNISHMENT WAS "MANIFESTLY UNFAIR AND
 FAIL(ED) TO SATISFY THE JUST CRITERION." SHE FOUND THAT THIS ONE
 INCIDENT WAS INCONCLUSIVE PROOF THAT THE GRIEVANT WAS UNSUITED TO
 PERFORM FURTHER DIVING ASSIGNMENTS AND THAT THE PUNISHMENT OF DEPRIVING
 HIM OF DIVING WORK AND ITS PREMIUM PAY IN PERPETUITY WAS EXCESSIVELY
 PUNITIVE.  ACCORDINGLY, THE ARBITRATOR MADE THE FOLLOWING AWARD:
 
    THAT THE GRIEVANT OF (THE GRIEVANT) BE DISMISSED AS TO SUSPENSION AND
 LOSS OF FIVE DAYS PAY
 
    AND RETENTION OF THE NEGATIVE REPORT IN HIS PERSONNEL FILE.  I
 FURTHER FIND THAT (THE
 
    GRIEVANT) SHOULD BE RESTORED TO DIVING DUTIES WITHIN THIRTY DAYS OF
 THE DATE OF THIS AWARD.
 
    THE AGENCY FILED AN EXCEPTION UNDER SECTION 7122(A) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/ AND PART 2425 OF THE
 AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425, TO THE LAST SENTENCE
 OF THE ARBITRATOR'S AWARD ORDERING THE GRIEVANT RESTORED TO DIVING
 DUTIES.  THE UNION DID NOT FILE AN OPPOSITION.  /2/
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
 AGENCY'S EXCEPTION, THE LAST SENTENCE OF THE ARBITRATOR'S AWARD IS
 DEFICIENT BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION, OR IS
 DEFICIENT OR OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS CASES.
 
    IN ITS EXCEPTION TO THE DISPUTED PORTION OF THE AWARD, THE AGENCY
 CONTENDS THAT IT IS CONTRARY TO LAW, SPECIFICALLY SECTION 7106(A)(2)(B)
 OF THE STATUTE.  /3/ IN SUPPORT OF THIS EXCEPTION, THE AGENCY MAINTAINS
 THAT PURSUANT TO SECTION 7106(A)(2)(B), NOTHING, INCLUDING AN
 ARBITRATION AWARD, SHALL AFFECT THE AUTHORITY OF ANY MANAGEMENT OFFICIAL
 TO ASSIGN WORK.  THE AGENCY STATES THAT THE AWARD REQUIRES THE
 ASSIGNMENT OF WORK, SPECIFICALLY DIVING DUTIES, TO THE GRIEVANT AND
 ARGUES THAT THE AWARD THEREFORE ELIMINATES THE DISCRETION IN THE
 ASSIGNMENT OF WORK THAT IS INHERENT IN SECTION 7106 OF THE STATUTE.
 THUS, THE AGENCY ASSERTS THAT THE AWARD IS DEFICIENT AS CONTRARY TO LAW.
 
    THE AGENCY'S EXCEPTION THAT THE ARBITRATOR'S AWARD IS CONTRARY TO LAW
 STATES A GROUND ON WHICH THE AUTHORITY WILL FIND AN ARBITRATOR'S AWARD
 DEFICIENT UNDER SECTION 7122(A)(1) OF THE STATUTE.  HOWEVER, THE AGENCY
 HAS NOT DEMONSTRATED IN WHAT MANNER THE ARBITRATOR'S AWARD IS CONTRARY
 TO SECTION 7106(A)(2)(B) OF THE STATUTE BY INTERFERING WITH THE AGENCY'S
 RIGHT TO ASSIGN WORK.
 
    IN ESSENCE THE AGENCY'S ARGUMENT IN THIS CASE IS THAT, BY DIRECTING
 THAT THE GRIEVANT BE RESTORED TO DIVING DUTIES, THE AWARD INTERFERES
 WITH MANAGEMENT'S RIGHT TO DECIDE TO NO LONGER ASSIGN SUCH DUTIES TO THE
 GRIEVANT.  HOWEVER, THIS ARGUMENT DISREGARDS THE FACT THAT THE ACTIVITY
 DECIDED TO NO LONGER ASSIGN THE GRIEVANT DIVING DUTIES SOLELY FOR
 PURPOSE OF DISCIPLINING HIM.  THE AGENCY'S ARGUMENT FURTHER DISREGARDS
 THE FACT THAT IT HAS AGREED IN ITS COLLECTIVE BARGAINING AGREEMENT THAT
 IT WILL TAKE DISCIPLINARY ACTION ONLY FOR JUST CAUSE /4/ , WHICH THE
 ARBITRATOR FOUND TO BE LACKING IN THIS CASE WITH RESPECT TO THE REMOVAL
 OF THE GRIEVANT FROM FUTURE DIVING DUTIES.  IN THESE CIRCUMSTANCES THE
 AGENCY HAS NOT SHOWN THAT THE AWARD IS CONTRARY TO SECTION 7106 OF THE
 STATUTE BY AFFECTING MANAGEMENT'S AUTHORITY TO ASSIGN WORK.
 
    AS HAS BEEN NOTED, THE AGENCY ACTED IN THIS CASE TO DISCIPLINE THE
 GRIEVANT BY, AMONG OTHER THINGS, REMOVING HIM FROM FUTURE DIVING DUTIES.
  THEREAFTER, WHEN THE GRIEVANCE WAS FILED AND ULTIMATELY SUBMITTED TO
 ARBITRATION, THE ARBITRATOR EVALUATED THAT DISCIPLINE IN ACCORDANCE WITH
 THE AGREEMENT PROVISION THAT DISCIPLINARY ACTION WOULD ONLY BE TAKEN FOR
 JUST CAUSE.  THE ARBITRATOR CONCLUDED THAT THE PORTION OF THE
 DISCIPLINARY ACTION WHICH WOULD DEPRIVE THE GRIEVANT OF PREVIOUSLY
 ASSIGNED DIVING WORK "IN PERPETUITY" DID NOT MEET THE "JUST CAUSE"
 REQUIREMENTS OF THE AGREEMENT.  AS A REMEDY THE ARBITRATOR, WHILE
 UPHOLDING THE OTHER DISCIPLINARY ACTIONS MANAGEMENT HAD IMPOSED,
 DIRECTED MANAGEMENT TO RESTORE THE GRIEVANT TO THE DIVING DUTIES WHICH
 HE HAD BEEN ROUTINELY ASSIGNED TO PERFORM BY THE ACTIVITY PRIOR TO THE
 DISPUTED DISCIPLINARY ACTION.  THUS, THE AWARD SOLELY REPRESENTS A
 DETERMINATION ON A DISCIPLINARY MATTER AND IS ONLY CONCERNED WITH
 REMEDYING WHAT THE ARBITRATOR FOUND TO BE AN IMPROPER IMPOSITION OF
 DISCIPLINE BY THE ACTIVITY.  THE AWARD HAS NOT BEEN SHOWN TO DIRECTLY
 CONCERN MANAGEMENT'S EXERCISE OF ITS RIGHT PURSUANT TO SECTION 7106 TO
 ASSIGN WORK.
 
    IN TERMS OF THIS CASE, THE AGENCY HAS NOT SHOWN THAT THE AWARD
 DIRECTS AN ASSIGNMENT OF DUTIES TO AN INDIVIDUAL WHOM THE ACTIVITY HAD
 NOT INITIALLY DETERMINED SHOULD BE ASSIGNED SUCH DUTIES AND TO WHOM SUCH
 DUTIES HAD NOT IN FACT BEEN ASSIGNED.  INSTEAD, THE AWARD SIMPLY DIRECTS
 MANAGEMENT TO REINSTITUTE ITS PREVIOUS DECISION TO ASSIGN DIVING DUTIES
 TO THE GRIEVANT AFTER THE ARBITRATOR FOUND THAT TAKING SUCH DUTIES AWAY
 FROM THE GRIEVANT AS A DISCIPLINARY MEASURE DID NOT MEET THE "JUST
 CAUSE" REQUIREMENTS OF THE AGREEMENT.  IN THESE CIRCUMSTANCES THE AGENCY
 HAS FAILED TO DEMONSTRATE THAT THE ARBITRATOR'S AWARD DIRECTLY
 INTERFERES WITH THE AGENCY'S BASIC RIGHT TO ASSIGN WORK UNDER SECTION
 7106(A)(2)(B) OF THE STATUTE.  THEREFORE, THE AGENCY'S EXCEPTION THAT
 THE AWARD IS CONTRARY TO LAW, SPECIFICALLY SECTION 7106(A)(2)(B) OF THE
 STATUTE, PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5
 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S RULES AND
 REGULATIONS.
 
    FOR THE FOREGOING REASONS AND, PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, WE HEREBY SUSTAIN THE ARBITRATOR'S
 AWARD.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 24, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY ON 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).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.
 
    /2/ THE SUBMISSION FILED BY THE GRIEVANT WAS NOT CONSIDERED BY THE
 AUTHORITY IN REACHING ITS DECISION HEREIN.
 
    /3/ 5 U.S.C. 7106 PERTINENTLY PROVIDES:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
   .          .          .          .
 
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
   .          .          .          .
 
 
    (B) TO ASSIGN WORK . . . (.)
 
    /4/ 5 U.S.C. 7106(B)(3) PROVIDES:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
   .          .          .          .
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
   .          .          .          .
 
 
    (3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 EXERCISE OF ANY
 
    AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
 
    THUS, THE PARTIES' AGREEMENT PROVISION THAT "(D)ISCIPLINARY ACTION
 SHALL BE TAKEN ONLY FOR JUST CAUSE" WAS PROPERLY AGREED TO BY THE
 PARTIES AS AN APPROPRIATE ARRANGEMENT FOR EMPLOYEES ADVERSELY AFFECTED
 BY MANAGEMENT'S EXERCISE OF ITS AUTHORITY UNDER THE STATUTE TO
 DISCIPLINE EMPLOYEES.  SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C.,
 3 FLRA NO. 120(1980) (WHEREIN THE AUTHORITY FOUND THAT A PROPOSAL
 PROVIDING A REQUIREMENT OF "FAIR AND EQUITABLE" BY WHICH PERFORMANCE
 STANDARDS MAY SUBSEQUENTLY BE EVALUATED IN A GRIEVANCE WHEN EMPLOYEES
 BELIEVE THEY HAVE BEEN ADVERSELY AFFECTED BY THE APPLICATION OF THE
 STANDARDS TO THEM WAS "WITHIN THE DUTY TO BARGAIN UNDER SECTION
 7106(B)(3) OF THE STATUTE AS AN APPROPRIATE ARRANGEMENT FOR EMPLOYEES
 ADVERSELY AFFECTED BY MANAGEMENT'S AUTHORITY UNDER THE STATUTE . . . TO
 DISCIPLINE EMPLOYEES FOR UNACCEPTABLE PERFORMANCE." ID. AT 10-11 OF
 DECISION);  SEE ALSO AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 1968 AND DEPARTMENT OF TRANSPORTATION SAINT LAWRENCE
 SEAWAY DEVELOPMENT CORPORATION, MASSENA, NEW YORK, 5 FLRA NO. 14(1981)
 AT 8-13 OF DECISION.