[ v12 p34 ]
The decision of the Authority follows:
12 FLRA No. 8 FEDERAL CORRECTIONAL INSTITUTION Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1286 Union Case No. O-AR-71 DECISION This matter is now before the Authority on exceptions to the arbitration award, as clarified, of Arbitrator Edwin R. Render filed by the Department of Justice (the Agency) on behalf of the Activity. The Union filed an opposition. This matter initially arose when the Union and the Activity submitted to arbitration the issue of whether an ordered 21-day suspension of the grievant for eight instances of alleged misconduct was for just cause as required by the parties' collective bargaining agreement. The Arbitrator found that the grievant had been guilty of misconduct in five of the instances, and as his award assessed a suspension of seven days and a written warning. The Union filed exceptions to the award, but the Authority determined that the exceptions provided no basis for finding the award deficient. /1/ Subsequently, the Union filed a petition for review of the Authority's decision with the United States Court of Appeals for the District of Columbia Circuit. In its brief to the court, the Union essentially argued that the Authority had erred when it did not find the award deficient as contrary to law. Specifically, the Union maintained that this case must be decided under Executive Order 11491, as amended (the Order), because all of the Activity's actions which gave rise to the grievance occurred in 1978, before the effective date of the Statute, and that under the Order the Arbitrator was precluded from sustaining any discipline that was based in part on participation in union activities. Claiming that the Arbitrator expressly found that the grievant's ordered suspension was tainted in this respect, the Union's position was that the Arbitrator's award sustaining seven days of the ordered suspension is contrary to applicable law. However, the Union in its exceptions to the award filed with the Authority had not contended that the award was contrary to law, and consequently the exceptions to the award were not considered on that basis. For this reason, as well as the significance of the newly raised issue, the Authority requested of the court of appeals a remand so the Authority could consider this question before consideration by the court, and the court ordered the case remanded to the Authority. /2/ The Authority then determined that the Arbitrator's award would be found 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." /3/ Because of uncertainty as to whether the Arbitrator had made an express finding in this regard, the Authority remanded the award to the parties to have them obtain a clarification from the Arbitrator. /4/ As his clarification, the Arbitrator stated that "all of the disciplinary action taken against (the grievant) was, in part, motivated by a consideration of (his) union activities." Thus, the Authority finds that the award is deficient as contrary to law because under the law applicable to this case, discipline of an employee is unlawful if motivated in part by the employee's union activities. Therefore, the Arbitrator's award assessing a suspension of seven days and a written warning must be modified so as to prohibit any disciplining of the grievant. /5/ Accordingly, the Arbitrator's award is modified /6/ to provide as follows: Grievance sustained. It is ordered that the directed 21-day suspension is set aside. Issued, Washington, D.C., April 28, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Federal Correctional Institution and American Federation of Government Employees, AFL-CIO, Local 1286, 3 FLRA 687 (1980). /2/ American Federation of Government Employees, AFL-CIO, Local 1286 v. Federal Labor Relations Authority, No. 80-2105, August 18, 1981. The Agency challenges consideration by the Authority of the issue of whether the award was contrary to law. However, the Authority's actions herein are directly responsive to the Order of the court. /3/ Federal Correctional Institution and American Federation of Government Employees, AFL-CIO, Local 1286, 7 FLRA No. 50 (1981), at 5. The Agency in its exceptions contends that the Authority should have applied the law under the Federal Service Labor-Management Relations Statute (the Statute). However, although the Union's exceptions were filed under the Statute, it is the law under the Order which is 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. U.S. Naval Station, Mayport, Florida and American Federation of Government Employees, Local 2010, AFL-CIO, 6 FLRA No. 26 (1981). The Agency similarly argues that the Authority lacks jurisdiction because the award relates to a long-term suspension covered by 5 U.S.C. 7512 (Supp. V 1981). However, this argument is without merit because at the time of the ordered 21-day suspension, such an action was not covered by the predecessor provision to that section (see 5 U.S.C. chapter 75 (Supp. II 1978); 5 CFR part 752 (1978)). /4/ The Agency disputes the propriety of this action, arguing that no prior notice was given to it. However, the Agency's argument is without merit since notice was given to the Bureau of Prisons which is and has been the representative of the Government throughout the administrative proceedings. /5/ In view of this decision, it is unnecessary for the Authority to resolve the Agency's exception contending that the Arbitrator in clarifying his award was not authorized himself to use language setting aside the ordered suspension. /6/ The decretal portion of our earlier decision in this matter (see note 1, supra) is set aside to the extent it is inconsistent with our decision and order herein.