Federal Correctional Institution (Activity) and American Federation of Government Employees, Local 1286, AFL-CIO (Union)

 7 FLRA No. 50
 
 FEDERAL CORRECTIONAL
 INSTITUTION
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 1286
 Union
 
                                            Case No. O-AR-71
 
                            DECISION ON REMAND
 
    THIS MATTER IS BEFORE THE AUTHORITY AS A RESULT OF AN ORDER OF THE
 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, /1/
 REMANDING THE RECORD IN THIS CASE TO THE AUTHORITY FOR ITS CONSIDERATION
 OF ARGUMENTS RAISED IN THE BRIEF OF THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1286 (THE UNION) FILED WITH THE
 COURT.  THE UNION HAD FILED A PETITION FOR REVIEW WITH THE COURT UNDER
 SECTION 712(A)(1) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (THE STATUTE) /2/ CHALLENGING THE AUTHORITY'S DECISION IN THIS
 CASE /3/ WHICH RESOLVED EXCEPTIONS FILED BY THE UNION TO AN ARBITRATOR'S
 AWARD.
 
    THE UNION AND THE ACTIVITY HAD SUBMITTED TO ARBITRATION THE ISSUE OF
 WHETHER AN ORDERED 21-DAY SUSPENSION OF THE GRIEVANT FOR EIGHT INSTANCES
 OF ALLEGED MISCONDUCT WAS FOR JUST AND SUFFICIENT CAUSE WITHIN THE
 MEANING OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.  /14/ THE
 ARBITRATOR SEPARATELY CONSIDERED THE EVIDENCE AS TO EACH OF THE EIGHT
 INSTANCES AND EXPRESSLY FOUND THAT THE GRIEVANT WAS GUILTY OF MISCONDUCT
 IN FIVE OF THEM.  THE ARBITRATOR THEN ADDRESSED THE UNION'S ARGUMENT
 THAT ALL EIGHT CHARGES WERE DISCRIMINATORILY MOTIVATED BECAUSE OF THE
 GRIEVANT'S UNION ACTIVITIES.  THE UNION MAINTAINED THAT BECAUSE OF THIS
 DISCRIMINATORY MOTIVATION, THE GRIEVANT'S SUSPENSION COULD NOT BE
 SUSTAINED.
 
    THE ARBITRATOR AGREED WITH THE UNION THAT "SOME OF THE ACTION WHICH
 WAS TAKEN AGAINST THE GRIEVANT INVOLVED DISCRIMINATION." HOWEVER, THE
 ARBITRATOR RULED THAT
 
    THE FINDING THAT THE EMPLOYER'S ACTION WAS MOTIVATED BY REASONS OTHER
 THAN THOSE STATED IN
 
    THE FORMAL CHARGES AGAINST THE GRIEVANT DOES NOT IN AND OF ITSELF
 PRECLUDE AN ARBITRATOR FROM
 
    IMPOSING DISCIPLINE WHERE THE GRIEVANT HAS ENGAGED IN MISCONDUCT.
 THEREFORE, THE ARBITRATOR
 
    WILL IMPOSE DISCIPLINE IN THOSE INSTANCES IN WHICH HE BELIEVES THAT
 THE GRIEVANT ENGAGED IN
 
    SOME KIND OF PROHIBITIVE (SIC) CONDUCT.  ACCORDINGLY, THE ARBITRATOR
 ASSESSED A TOTAL SUSPENSION OF SEVEN DAYS ON THE BASIS OF THE FIVE
 INSTANCES WHERE HE HAD FOUND THE GRIEVANT GUILTY OF MISCONDUCT.
 
    THE UNION FILED EXCEPTIONS TO THIS AWARD UNDER SECTION 7122(A) OF THE
 STATUTE /5/ AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5
 CFR PART 2425) STATING THAT "IT IS THE POSITION OF THE UNION THAT THE
 ARBITRATOR HAS EXCEEDED HIS AUTHORITY AND THAT THE AWARD DOES NOT DRAW
 ITS ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT." AFTER CONSIDERING
 THE UNION'S ARGUMENTS AND REVIEWING THE ARBITRATOR'S AWARD, THE
 AUTHORITY DETERMINED THAT THE UNION HAD NOT DEMONSTRATED THAT THE
 ARBITRATOR EXCEEDED HIS AUTHORITY OR THAT THE AWARD FAILED TO DRAW ITS
 ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT.  THEREFORE, THE
 AUTHORITY SUSTAINED THE ARBITRATOR'S AWARD.
 
    IN ITS BRIEF FILED WITH THE COURT OF APPEALS, THE UNION ESSENTIALLY
 ARGUES THAT THE AUTHORITY ERRED WHEN IT DID NOT FIND THE ARBITRATOR'S
 AWARD DEFICIENT AS CONTRARY TO LAW.  HOWEVER, AS HAS BEEN NOTED, THE
 UNION'S EXCEPTIONS TO THE AWARD FILED WITH THE AUTHORITY DID NOT CONTEND
 THAT THE AWARD WAS CONTRARY TO LAW, AND CONSEQUENTLY THE EXCEPTIONS TO
 THE AWARD WERE NOT CONSIDERED ON THAT BASIS.  FOR THIS, AS WELL AS THE
 SIGNIFICANCE OF THE NEWLY RAISED ISSUE, THE AUTHORITY REQUESTED OF THE
 COURT OF APPEALS A REMAND OF THE RECORD SO THAT THE AUTHORITY COULD
 CONSIDER THIS QUESTION BEFORE CONSIDERATION BY THE COURT, AND SUCH
 REQUEST WAS GRANTED.
 
    SPECIFICALLY, THE UNION'S POSITION IS THAT UNDER APPLICABLE LAW THE
 ARBITRATOR WAS PRECLUDED FROM SUSTAINING ANY DISCIPLINE THAT WAS BASED
 IN PART ON CONSIDERATION OF UNION ACTIVITIES.  BECAUSE ALL OF THE
 ACTIVITY'S ACTIONS WHICH GAVE RISE TO THIS GRIEVANCE OCCURRED IN 1978,
 BEFORE THE EFFECTIVE DATE OF THE STATUTE, THE UNION MAINTAINS THAT THIS
 CASE MUST BE DECIDED UNDER EXECUTIVE ORDER 11491, AS AMENDED (THE
 ORDER).  THE UNION FURTHER STATES THAT UNDER SECTIONS 1(A) AND 19(A)(2)
 OF THE ORDER, /6/ MANAGEMENT'S DISCIPLINE OF AN EMPLOYEE WAS UNLAWFUL
 EVEN IF ONLY BASED IN PART ON ANTIUNION ANIMUS.  MAINTAINING THAT THE
 ARBITRATOR EXPRESSLY FOUND THAT THE GRIEVANT'S ORDERED SUSPENSION WAS
 PARTLY MOTIVATED BY SUCH ANIMUS, THE UNION CONTENDS THAT THE
 ARBITRATOR'S AWARD SUSTAINING SEVEN DAYS OF THE ORDERED SUSPENSION IS
 CONTRARY TO LAW.
 
    THE AUTHORITY AGREES WITH THE UNION THAT, ALTHOUGH THE UNION'S
 EXCEPTIONS WERE FILED UNDER THIS STATUTE, THE ORDER SETS FORTH THE LAW
 APPLICABLE TO THIS CASE BECAUSE ALL OF THE ACTIVITY'S ACTIONS WHICH
 RESULTED IN THE ORDERED SUSPENSION OF THE GRIEVANT OCCURRED IN 1978,
 WHEN THE ORDER WAS STILL IN EFFECT.  HOWEVER, THE AUTHORITY HAS HELD
 THAT AN AWARD WHICH IS CONTRARY TO THE ORDER WILL BE FOUND DEFICIENT
 UNDER SECTION 7122(A)(1) OF THE STATUTE.  U.S. NAVAL STATION, MAYPORT,
 FLORIDA AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2010,
 AFL-CIO, 6 FLRA NO. 26 (1981).  WITH RESPECT TO THE ORDER, IT WAS WELL
 ESTABLISHED UNDER SECTIONS 1(A) AND 19(A)(2) THAT IF AN AGENCY'S
 DISCIPLINE OF AN EMPLOYEE WAS IN PART MOTIVATED BY THE EMPLOYEE'S UNION
 ACTIVITIES, THE DISCIPLINE WAS UNLAWFUL EVEN IF THE AGENCY HAD A
 LEGITIMATE BASIS FOR DISCIPLINING THE EMPLOYEE.  SEE, E.G., DIRECTORATE
 OF SUPPLY OPERATIONS, DEFENSE LOGISTICS AGENCY, HEADQUARTERS, DEFENSE
 LOGISTICS AGENCY AND LOUIS J. DERDEVANIS, 2 FLRA NO. 118 (1980)
 (TRANSITION CASE DECIDED UNDER THE ORDER);  DEPARTMENT OF HEALTH,
 EDUCATION AND WELFARE, SOCIAL SECURITY ADMINISTRATION, BUREAU OF
 HEARINGS AND APPEALS, REGION II, SAN JUAN, PUERTO RICO, 8 A/SLMR 1092,
 A/SLMR NO. 1127 (1978);  U.S. DEPARTMENT OF HOUSING AND URBAN
 DEVELOPMENT, MILWAUKEE AREA OFFICE, MILWAUKEE, WISCONSIN, 7 A/SLMR 948,
 A/SLMR NO. 925 (1977).  /7/ IN TERMS OF THIS CASE, THE AUTHORITY WILL
 FIND THE ARBITRATOR'S AWARD CONTRARY TO LAW IF IT IS ESTABLISHED THAT
 MANAGEMENT'S ACTION TO DISCIPLINE THE GRIEVANT IN ANY OF THE FIVE
 INSTANCES WHERE THE ARBITRATOR FOUND THE GRIEVANT GUILTY OF MISCONDUCT
 WAS PARTLY BASED ON CONSIDERATION OF THE GRIEVANT'S UNION ACTIVITIES.
 
    HOWEVER, CONTRARY TO THE UNION'S UNEQUIVOCAL ASSERTION THAT THE
 ARBITRATOR EXPRESSLY FOUND THAT THE ORDERED SUSPENSION OF THE GRIEVANT
 WAS MOTIVATED BY HIS UNION ACTIVITES, THE AUTHORITY CANNOT ASCERTAIN
 FROM THE AWARD WHETHER THE ARBITRATOR SUSTAINED THE DISCIPLINE OF THE
 GRIEVANT IN ANY INSTANCE WHERE HE FOUND MANAGEMENT'S ACTIONS TO HAVE
 BEEN DISCRIMINATORILY MOTIVATED.  BECAUSE OF THIS UNCERTAINTY, THE
 ARBITRATOR'S AWARD MUST BE REMANDED TO THE PARTIES TO HAVE THEM OBTAIN A
 CLARIFICATION AND INTERPRETATION OF THE AWARD FROM THE ARBITRATOR.
 
    ACCORDINGLY, PURSUANT TO SECTION 2425.4 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2425.4(1981)), THE ARBITRATOR'S AWARD IS REMANDED TO
 THE PARTIES WITH THE DIRECTION THAT THEY IMMEDIATELY RESUBMIT THE AWARD
 TO THE ARBITRATOR TO OBTAIN A CLARIFICATION AND INTERPRETATION.  THE
 SUBMISSION SHOULD REQUEST EXPEDITED CONSIDERATION OF THIS MATTER FROM
 THE ARBITRATOR AND INDICATE THAT IT IS FOR THE LIMITED PURPOSE OF HAVING
 THE ARBITRATOR CLARIFY AND INTERPRET HIS AWARD TO SPECIFY WHETHER IN ANY
 INSTANCE WHERE HE SUSTAINED THE ORDERED SUSPENSION OF THE GRIEVANT, THE
 ACTIVITY'S ACTION IN DISCIPLINING THE GRIEVANT IN THAT INSTANCE WAS IN
 WHOLE OR IN PART MOTIVATED BY CONSIDERATION OF THE GRIEVANT'S UNION
 ACTIVITIES.  THE AUTHORITY RETAINS JURISDICTION IN THIS CASE UNTIL AND
 FOR TEN DAYS AFTER RECEIPT BY THE PARTIES OF THE ARBITRATOR'S
 CLARIFICATION AND INTERPRETATION.  THE PARTIES MUST FILE ANY EXCEPTIONS
 TO THE AWARD AS CLARIFIED WITH THE AUTHORITY WITHIN THAT TEN-DAY PERIOD.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 14, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL 6ABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1286
 V. FEDERAL LABOR RELATIONS AUTHORITY, NO. 80-2105, AUGUST 18, 1981.
 
    /2/ SECTION 7123(A)(1) PERTINENTLY PROVIDES:
 
    (A) ANY PERSON AGGRIEVED BY ANY FINAL ORDER OF THE AUTHORITY OTHER
 THAN AN ORDER UNDER--
 
    (1) SECTION 7122 OF THIS TITLE (INVOLVING AN AWARD BY AN ARBITRATOR),
 UNLESS THE ORDER
 
    INVOLVES AN UNFAIR LABOR PRACTICE UNDER SECTION 7118 OF THIS TITLE, .
 . .
 
   .          .          .          .
 
 
 MAY, DURING THE 60-DAY PERIOD BEGINNING ON THE DATE ON WHICH THE ORDER
 WAS ISSUED, INSTITUTE AN ACTION FOR JUDICIAL REVIEW OF THE AUTHORITY'S
 ORDER IN THE UNITED STATES COURT OF APPEALS IN THE CIRCUIT IN WHICH THE
 PERSON RESIDES OR TRANSACTS BUSINESS OR IN THE UNITED STATES COURT OF
 APPEALS FOR THE DISTRICT OF COLUMBIA.
 
    /3/ 3 FLRA NO. 111 (1980).
 
    /4/ ARTICLE 28, SECTION G OF THE PARTIES' AGREEMENT PROVIDES:
 "DISCIPLINARY ACTIONS WILL ONLY BE TAKEN FOR JUST AND SUFFICIENT CAUSE
 IN ACCORDANCE WITH APPLICABLE REGULATIONS."
 
    /5/ SECTION 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 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.
 
    /6/ SECTION 1(A) PERTINENTLY PROVIDED:
 
    (A) EACH EMPLOYEE OF THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT
 HAS THE RIGHT, FREELY
 
    AND WITHOUT FEAR OF PENALTY OR REPRISAL, TO FORM, JOIN, AND ASSIST A
 LABOR ORGANIZATION OR TO
 
    REFRAIN FROM ANY SUCH ACTIVITY, AND EACH EMPLOYEE SHALL BE PROTECTED
 IN THE EXERCISE OF THIS
 
    RIGHT.
 
    SECTION 19(A)(2) PROVIDED:
 
    (A) AGENCY MANAGEMENT SHALL NOT--
 
   .          .          .          .
 
 
    (2) ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
 DISCRIMINATION IN REGARD
 
    TO HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT(.)
 
    /7/ THIS IS NOT, HOWEVER, THE TEST UNDER THE STATUTE.  FOR SUCH
 DISCIPLINE TO BE CONTRARY TO THE STATUTE, IT MUST BE ESTABLISHED THAT
 THE DISCIPLINE OF AN EMPLOYEE WOULD NOT HAVE ORIGINALLY OCCURRED BUT FOR
 THE EMPLOYEE'S UNION ACTIVITIES.  SEE INTERNAL REVENUE SERVICE,
 WASHINGTON, D.C. AND NATIONAL TREASURY EMPLOYEES UNION, 6 FLRA NO.
 23(1981).