Navy Exchange, Naval Station, San Diego, California (Activity) and American Federation of Government Employees, Interdepartmental Local 3723, AFL-CIO (Union) 

 6 FLRA No. 73
 
 NAVY EXCHANGE, NAVAL STATION,
 SAN DIEGO, CALIFORNIA
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 INTERDEPARTMENTAL LOCAL
 3723, AFL-CIO
 Union
 
                                            Case No. O-AR-56
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR LLOYD H. BAILER FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR, THIS CASE CONCERNS A STATEMENT BY THE
 UNION IN ITS NEWSLETTER.  THE ACTIVITY FILED A GRIEVANCE ALLEGING THAT
 "BY PRINTING MALICIOUS STATEMENTS IN ITS LOCAL NEWSLETTER, 'THE
 STEWARD,' (THE UNION) HAS CAUSED UNREPAIRABLE (SIC) HARM IN THE
 RELATIONSHIP BETWEEN NAVY EXCHANGE EMPLOYEES AND MANAGEMENT." THE
 GRIEVANCE ALLEGED THAT BY PUBLISHING THIS STATEMENT /1/ THE UNION HAD
 VIOLATED THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.  THE UNION
 CLAIMED THAT THE ACTIVITY'S COMPLAINT WAS NOT GRIEVABLE AND THE MATTER
 WAS ULTIMATELY SUBMITTED TO ARBITRATION.  THE ARBITRATOR STATED THE
 ISSUES AS FOLLOWS:
 
    HAS THE EMPLOYER PRESENTED A GRIEVABLE MATTER?  IF SO, WHAT
 DISPOSITION SHOULD BE MADE OF
 
    THIS GRIEVANCE?
 
    DETERMINING THAT THE PARTIES' AGREEMENT DID NOT PRECLUDE MANAGEMENT
 GRIEVANCES, THE ARBITRATOR FOUND THAT THE ACTIVITY'S COMPLAINT WAS
 GRIEVABLE AND ARBITRABLE.  ON THE MERITS OF THE GRIEVANCE, THE
 ARBITRATOR DETERMINED THAT THE NEWSLETTER STATEMENT WAS WITHOUT
 FOUNDATION AND WAS CONTRARY TO THE SPIRIT OF THE COLLECTIVE BARGAINING
 AGREEMENT.  HOWEVER, HE RULED THAT HE WAS UNABLE TO AWARD A REMEDY
 BECAUSE THE STATEMENT DID "NOT EXCEED THE BOUNDS OF THE 'FREE SPEECH'
 RIGHTS OF THE UNION." ACCORDINGLY, THE ARBITRATOR ISSUED THE FOLLOWING
 AWARD:
 
    THE EMPLOYER HAS RAISED A GRIEVABLE MATTER WHICH MAY BE PRESENTED TO
 ARBITRATION.  THE
 
    UNION STATEMENT IN ITS NEWSLETTER ABOUT WHICH THE EMPLOYER COMPLAINS
 IS UNFOUNDED, BUT THERE
 
    IS NO BASIS FOR A REMEDY.
 
    THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /2/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425.
  /3/ THE AGENCY DID NOT FILE AN OPPOSITION.
 
    IN ITS FIRST EXCEPTION THE UNION CONTENDS THAT THE AWARD IS BASED ON
 A MISINTERPRETATION OF EXECUTIVE ORDER 11491, AS AMENDED.  IN SUPPORT OF
 THIS EXCEPTION, THE UNION REFERS TO STATEMENTS CONCERNING EXECUTIVE
 ORDER 11491 MADE BY THE ARBITRATOR IN THE COURSE OF FINDING THAT
 MANAGEMENT COULD GRIEVE IN THIS CASE AND ASSERTS THAT THESE STATEMENTS
 ARE "CLEARLY ERRONEOUS" IN LIGHT OF CERTAIN DECISIONS ISSUED UNDER THE
 ORDER.  /4/ THE AUTHORITY FINDS THAT THIS EXCEPTION PROVIDES NO BASIS
 FOR FINDING THE AWARD DEFICIENT.  NONE OF THE DECISIONS CITED BY THE
 UNION NOR ANY LAW SPECIFICALLY PRECLUDED MANAGEMENT FROM FILING A
 GRIEVANCE IN THIS PARTICULAR CASE.  MOREOVER, IT IS NOTED THAT, WHILE
 THE ARBITRATOR REFERRED TO PROVISIONS OF E.O. 11491, HIS DECISION
 FINDING THAT MANAGEMENT COULD GRIEVE IN THIS CASE WAS PRIMARILY BASED ON
 HIS FINDINGS THAT THE PARTIES' COLLECTIVE BARGAINING AGREEMENT DID NOT
 PRECLUDE MANAGEMENT FROM FILING GRIEVANCES.  ACCORDINGLY, THE
 ARBITRATOR'S AWARD THAT "(T)HE EMPLOYER HAS RAISED A GRIEVABLE MATTER"
 INVOLVED HIS INTERPRETATION OF THE PARTIES' AGREEMENT AND THE UNION'S
 EXCEPTION THEREFORE CONSTITUTES NOTHING MORE THAN DISAGREEMENT WITH THAT
 INTERPRETATION.  /5/ CONSEQUENTLY, THE UNION'S FIRST EXCEPTION 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.  UNITED STATES
 ARMY MISSILE MATERIEL READINESS COMMAND (USAMIRCOM) AND AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1858, AFL-CIO, 2 FLRA NO.
 60(1980).
 
    IN ITS SECOND EXCEPTION THE UNION CONTENDS THAT "CONSIDERATION OF THE
 GRIEVANCE CONSTITUTES PRIOR RESTRAINT." IN SUPPORT OF THIS EXCEPTION,
 THE UNION ARGUES THAT THE NEWSLETTER WAS PROTECTED UNDER THE FIRST
 AMENDMENT TO THE UNITED STATES CONSTITUTION AND "TO ALLOW ANY 'TRIAL' ON
 THE LEGITIMACY OF WHAT IT CONTAINS, OF NECESSITY, WILL CAST A CHILL ON
 THE UNION'S FREEDOM OF EXPRESSION." HOWEVER, THE UNION'S EXCEPTION AND
 ASSERTIONS PROVIDE NO BASIS FOR FINDING THE AWARD DEFICIENT.  THE UNION
 FAILS TO ESTABLISH THAT THE ARBITRATOR'S "CONSIDERATION OF THE
 GRIEVANCE" IN ANY MANNER "CONSTITUTES (A) PRIOR RESTRAINT." THE
 ARBITRATOR DID NOT IMPOSE A RESTRAINT ON THE PUBLICATION OF THE
 NEWSLETTER BEFORE IT WAS PUBLISHED.  HE DID NOT SUPPRESS THE RELEASE AND
 DISSEMINATION OF THAT NEWSLETTER TO ITS RECIPIENTS.  INSTEAD, THE
 ARBITRATOR CONSIDERED THE ACTIVITY'S GRIEVANCE PROTESTING THE DAMAGE
 ASSERTEDLY CAUSED BY THE PUBLICATION AND DISSEMINATION OF THE
 NEWSLETTER.  FURTHERMORE, THE UNION FAILS TO ESTABLISH THAT THE
 ARBITRATOR'S CONSIDERATION OF THE PUBLISHED NEWSLETTER, TO DETERMINE
 WHETHER IT EXCEEDED THE LIMITS AND BOUNDS OF PROTECTED EXPRESSION,
 IMPROPERLY "CHILL(S)" THE UNION'S FREEDOM OF EXPRESSION IN VIOLATION OF
 "THE FIRST AMENDMENT RIGHTS OF THE UNION AND OF EMPLOYEES IN THE AREA OF
 FREE SPEECH." THEREFORE, THE UNION'S SECOND EXCEPTION PROVIDES NO BASIS
 FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION
 2425.3 OF THE AUTHORITY'S RULES.
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., AUGUST 12, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE STATEMENT APPEARED ON THE FRONT PAGE OF THE NEWSLETTER UNDER
 THE HEADING "NEWS OF INTEREST" AND READ AS FOLLOWS:
 
    SEEMS LIKE NAVY EXCHANGE MANAGEMENT AT 32ND STREET INSISTS ON
 THREATENING ITS EMPLOYEES AND
 
    TREATING THEM AS SECOND CLASS CITIZENS WHO HAVE NO RIGHTS AND MAY BE
 MANIPULATED AT
 
    MANAGEMENT'S WHIMS.  AS LONG AS THEY (MANAGEMENT) KEEP THINKING IN
 THAT MANNER, WE WILL KEEP
 
    ON FILING UNFAIR LABOR PRACTICES/GRIEVANCES WHICHEVER IS NECESSITATED
 BY THE OFFENSE
 
    COMMITTED.
 
    /2/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) 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).  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.
 
    /3/ ALTHOUGH THE UNION'S EXCEPTIONS WERE FILED AT THE TIME THE
 AUTHORITY'S INTERIM RULES AND REGULATIONS WERE IN EFFECT, THE FINAL
 RULES AND REGULATIONS, 5 CFR PART 2425(1981), ARE IDENTICAL TO THE
 INTERIM RULES.
 
    /4/ THE ARBITRATOR'S REFERENCES TO THE ORDER, AND CONSEQUENTLY THE
 UNION'S EXCEPTIONS THERETO, WERE THE RESULT OF THE FACT THAT THE
 PARTIES' AGREEMENT WAS NEGOTIATED UNDER E.O. 11491 AND THE AGREEMENT
 SPECIFICALLY STATED THAT IT WAS TO BE ADMINISTERED IN ACCORDANCE WITH
 THE PROVISIONS OF THE ORDER.
 
    /5/ IN LIGHT OF THIS DECISION, THE AUTHORITY NEED NOT REACH THE
 QUESTION OF WHETHER THE STATUTE OR E.O. 11491 IS MORE PROPERLY
 APPLICABLE TO THIS CASE WHICH AROSE AFTER THE EFFECTIVE DATE OF THE
 STATUTE.  HOWEVER, IT IS NOTED, CONTRARY TO THE APPARENT ASSERTION OF
 THE UNION, THAT NOTHING IN E.O. 11491 OR DECISIONS ISSUED THEREUNDER
 REQUIRED AN AGREEMENT TO CONTAIN AN EXPRESS AFFIRMATIVE PROVISION
 AUTHORIZING MANAGEMENT GRIEVANCES.