09:0538(63)AR - Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees MTC -- 1982 FLRAdec AR

 9 FLRA No. 63
 
 NORFOLK NAVAL SHIPYARD,
 PORTSMOUTH, VIRGINIA
 Activity
 
 and
 
 TIDEWATER VIRGINIA FEDERAL EMPLOYEES
 METAL TRADES COUNCIL
 Union
 
                                            Case No. O-AR-295
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR J. HARVEY DALY FILED BY 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 AGENCY DID NOT
 FILE AN OPPOSITION.
 
    THE DISPUTE IN THIS MATTER CONCERNS THE ONE-DAY SUSPENSION OF THE
 GRIEVANT FOR READING A NEWSPAPER DURING WORKING HOURS.  A GRIEVANCE WAS
 FILED AND ULTIMATELY SUBMITTED TO ARBITRATION DISPUTING THE SUSPENSION.
 
    THE ISSUE AGREED UPON BY THE PARTIES AND SUBMITTED TO THE ARBITRATOR
 WAS WHETHER THE SUSPENSION OF THE GRIEVANT WAS FOR JUST CAUSE.  TO THE
 ARBITRATOR THIS WAS TANTAMOUNT TO ASKING WHETHER UNDER THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT, THE GRIEVANT HAD A RIGHT TO READ A
 NEWSPAPER DURING WORKING HOURS.  THE ARBITRATOR'S UNEQUIVOCAL ANSWER TO
 THIS WAS THAT THE GRIEVANT DEFINITELY HAD NO SUCH RIGHT.  IN ADDITION,
 HAVING FOUND THAT THE GRIEVANT HAD PREVIOUSLY BEEN ORALLY ADMONISHED FOR
 READING A NEWSPAPER DURING WORKING HOURS, THE ARBITRATOR OBSERVED THAT
 THIS WAS THE SECOND SUCH INCIDENT INVOLVING THE GRIEVANT.  CONSEQUENTLY,
 THE ARBITRATOR MADE THE FOLLOWING RULING:
 
    THEREFORE, IT MUST BE CONCLUDED THAT THIS SECOND OFFENSE, OF READING
 A NEWSPAPER DURING
 
    DUTY HOURS, CONSTITUTES JUST CAUSE FOR THE SUSPENSION, AND SINCE THE
 ONE-DAY SUSPENSION WAS
 
    THE MINIMUM POSSIBLE, IT WAS NOT EXCESSIVE.  ACCORDINGLY, AS HIS
 AWARD THE ARBITRATOR DENIED THE GRIEVANCE.
 
    IN ITS EXCEPTION, THE UNION PRINCIPALLY CONTENDS THAT THE
 ARBITRATOR'S AWARD IS DEFICIENT BECAUSE THE ARBITRATOR ERRONEOUSLY
 CONCLUDED THAT THE NEWSPAPER INCIDENT FOR WHICH THE GRIEVANT WAS
 SUSPENDED WAS HIS SECOND DISCIPLINARY OFFENSE.  /1/ THE UNION MAINTAINS
 TO THE CONTRARY THAT THIS INCIDENT WAS THE GRIEVANT'S FIRST DISCIPLINARY
 OFFENSE AND THEREFORE A ONE-DAY SUSPENSION WAS NOT THE MINIMUM PENALTY
 AS WAS STATED BY THE ARBITRATOR.
 
    UNDER SECTION 7122(A)(2) OF THE STATUTE, THE AUTHORITY HAS FOUND AN
 ARBITRATION AWARD DEFICIENT WHEN IT WAS DEMONSTRATED THAT THE CENTRAL
 FACT UNDERLYING THE AWARD WAS CONCEDEDLY ERRONEOUS AND IN EFFECT WAS A
 GROSS MISTAKE OF FACT BUT FOR WHICH A DIFFERENT RESULT WOULD HAVE BEEN
 REACHED.  HEADQUARTERS, SAN ANTONIO AIR LOGISTICS CENTER, KELLY AIR
 FORCE BASE, TEXAS AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
 1617, AFL-CIO, SAN ANTONIO, TEXAS, 6 FLRA NO. 54 (1981).  IN
 HEADQUARTERS, SAN ANTONIO AIR LOGISTICS CENTER THE ARBITRATOR HAD
 CLEARLY MISAPPREHENDED THAT THE MULTI-UNIT COLLECTIVE BARGAINING
 AGREEMENT UNDER CONSIDERATION UNEQUIVOCALLY EXCLUDED THE BARGAINING UNIT
 INVOLVED IN THAT CASE.  MOREOVER, IT WAS CLEARLY ESTABLISHED THAT THE
 ARBITRATOR'S ERROR IN THIS REGARD WAS THE EXPRESS BASIS ON WHICH HE
 DENIED THE GRIEVANCE.  THUS, THE AUTHORITY FOUND THE AWARD DEFICIENT
 BECAUSE THE BASIS OF THE ARBITRATOR'S AWARD WAS CONCEDEDLY ERRONEOUS AND
 BECAUSE THE ARBITRATOR WOULD HAVE REACHED A DIFFERENT RESULT BUT FOR HIS
 MISAPPREHENSION OF THE MULTI-UNIT AGREEMENT.
 
    FROM THE RECORD BEFORE THE AUTHORITY IN THIS CASE, IT APPEARS THAT
 THE ARBITRATOR WAS UNAWARE THAT THE TERM "OFFENSE" HAS A SPECIALIZED
 MEANING FOR DISCIPLINARY PURPOSES UNDER THE ACTIVITY'S DISCIPLINARY
 REGULATION.  THUS, CONTRARY TO THE ARBITRATOR'S CONCLUSION THAT THIS WAS
 THE GRIEVANT'S "SECOND OFFENSE," THE INCIDENT INVOLVED IN THIS CASE WAS
 ONLY THE GRIEVANT'S FIRST OFFENSE FOR DISCIPLINARY PURPOSES BECAUSE THE
 ORAL ADMONISHMENT PREVIOUSLY RECEIVED BY THE GRIEVANT DOES NOT
 CONSTITUTE AN OFFENSE UNDER THE GUIDELINE SCHEDULE OF OFFENSES AND
 PENALTIES.  /2/ HOWEVER, THE SCHEDULE RELEVANTLY PROVIDES A RANGE OF
 PENALTIES OF REPRIMAND TO TWO-DAY SUSPENSION FOR THE FIRST OFFENSE AND A
 RANGE OF ONE TO FIVE-DAY SUSPENSION FOR A SECOND OFFENSE.  THUS, THE
 GRIEVANT'S ONE-DAY SUSPENSION IS WITHIN THE APPROPRIATE RANGE OF
 PENALTIES FOR A FIRST OFFENSE.  CONSEQUENTLY, THE AUTHORITY CANNOT
 ASCERTAIN FROM THE AWARD WHETHER THE ARBITRATOR WOULD HAVE REACHED A
 DIFFERENT RESULT AND FOUND THAT THE ONE-DAY SUSPENSIONS OF THE GRIEVANT
 WAS NOT FOR JUST CAUSE IF THE ARBITRATOR HAD NOT BELIEVED THAT THE TWO
 SEPARATE NEWSPAPER INCIDENTS CONSTITUTED TWO OFFENSES FOR DISCIPLINARY
 PURPOSES.  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, THE ARBITRATOR'S AWARD IS REMANDED TO THE PARTIES WITH THE
 DIRECTION THAT THEY RESUBMIT THE AWARD TO THE ARBITRATOR TO OBTAIN A
 CLARIFICATION AND INTERPRETATION.  THE RESUBMISSION TO THE ARBITRATOR IS
 FOR THE LIMITED PURPOSE OF HAVING THE ARBITRATOR CLARIFY AND INTERPRET
 HIS AWARD TO SPECIFY WHETHER IN THE CIRCUMSTANCES OF THIS FIRST OFFENSE
 BY THE GRIEVANT, HIS ONE-DAY SUSPENSION WAS FOR JUST CAUSE.  /3/ ISSUED,
 WASHINGTON, D.C., JULY 21, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE UNION FURTHER CONTENDS THAT THE ARBITRATOR ERRONEOUSLY
 CONCLUDED THAT THIS ARBITRATION ALSO DEALT WITH THE DISCIPLINE IMPOSED
 ON ANOTHER EMPLOYEE.  ALTHOUGH THE ARBITRATOR INITIALLY STATED THAT
 THERE WERE ONLY TWO AGGRIEVED EMPLOYEES INVOLVED IN THIS CASE, THE
 REMAINDER OF THE AWARD, INCLUDING HIS DENIAL OF THE GRIEVANCE, WAS
 DIRECTED TOWARD ONLY THE ONE GRIEVANT.  THUS, THIS CONTENTION PROVIDES
 NO BASIS FOR FINDING THE AWARD DEFICIENT.
 
    /2/ NAVSHIPYDNDRINST 12750.3A, FILED BY THE UNION IN SUPPORT OF ITS
 EXCEPTION, PROVIDES IN PART:
 
    THERE IS ONLY ONE KIND OF INFORMAL DISCIPLINARY ACTION, AN ORAL
 ADMONITION
 
    . . . .  INFORMAL DISCIPLINARY ACTIONS ARE NEITHER COUNTED AS
 OFFENSES UNDER THE GUIDELINE
 
    SCHEDULE OF DISCIPLINARY OFFENSES NOR MADE A MATTER OF RECORD IN THE
 OFFICIAL PERSONNEL FOLDER.
 
    /3/ FOLLOWING CLARIFICATION OF THE AWARD BY THE ARBITRATOR, EITHER
 PARTY MAY FILE EXCEPTIONS WITH THE AUTHORITY TO THE AWARD AS CLARIFIED.