32:0252(40)AR - - Air Force Logistics Command, Tinker AFB, Oklahoma City, OK and AFGE Local 916 - - 1988 FLRAdec AR - - v32 p252

[ v32 p252 ]
The decision of the Authority follows:

32 FLRA No. 40







Case No. O-AR-1460


I. Statement of the Case

This matter is before the Authority on an exception to the expedited arbitration award of Arbitrator John P. Owen. The Arbitrator denied the grievance over the reprimand of the grievant for failing to comply with a lawful order from a security police officer.

The Union filed an exception 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 Activity did not file an opposition.

We are unable to determine whether the Arbitrator sustained disciplinary action for conduct which is protected by the Statute. Therefore, we must remand the Arbitrator's award to the parties to have them obtain a clarification and interpretation of the award from the Arbitrator.

II. Background and Arbitrator's Award

The grievant, a Union official, was issued the letter of reprimand for failing "to comply with a lawful order from a security policeman" on April 16, 1987. The specific reasons stated for the reprimand concerned the grievant's attempts to personally serve copies of unfair labor practice charges filed by the Union on Activity supervisors who were named in the charges. The grievant's actions took place in a work area after completion of the grievant's workday. According to the decision to reprimand the grievant, when the grievant refused to leave the work area, security police were called to remove the grievant from the area. The grievant refused the instruction of the security police officer, who had responded, to leave the area. After another security police officer arrived, the grievant agreed to depart the area.

In response to the proposed reprimand, the grievant maintained that the reprimand was not warranted because, among other things, he: (1) was engaged in activities as a Union official, (2) was not in a restricted area, and (3) was not interfering with the work of bargaining unit employees.

After the grievant was issued the letter of reprimand, a grievance was filed over the reprimand. Subsequently, the parties submitted the issue of whether the reprimand was just and proper to expedited arbitration. Under the expedited arbitration procedures of the parties' collective bargaining agreement, the arbitrator must render a written award postmarked not later than 3 workdays after the conclusion of the arbitration hearing.

In this case, the entire award is as follows: "The Grievance is denied." The award is not accompanied by any opinion or discussion of the award.

III. Exceptions

The Union contends that the award is contrary to law and the parties' collective bargaining agreement. The Union argues that contrary to the charge against the grievant, the grievant was never lawfully ordered to leave the area. The Union also argues that the award is deficient because the Arbitrator apparently found that the grievant's activities were not protected because they constituted "self-help." The Union also claims that the award is deficient because the disciplinary action was not timely under the collective bargaining agreement. The Activity did not file an opposition to the Union's exception.

IV. Discussion

Section 7102 of the Statute provides, in part, that each employee shall have the right to assist any labor organization, freely and without fear of penalty or reprisal, and that each employee shall be protected in the exercise of that right. Thus, union activity engaged in by employees is protected from interference by agency employers. This right prevents an agency from denying a union representative access to agency premises, unless that denial is warranted. See, for example, Army and Air Force Exchange Service (AAFES), Lowry AFB Exchange, Lowry AFB, Colorado, 13 FLRA 310, 311 (1983); Philadelphia Naval Shipyard, 4 FLRA 255, 266 (1980). In order to lose the protection of the Statute, an employee must engage in improprieties which constitute flagrant misconduct or otherwise exceed the boundaries of protected activity. See, for example, United States Forces Korea/Eighth United States Army, 17 FLRA 718 (1985).

When exceptions which are filed to an arbitration award raise the question of whether a grievant was disciplined for conduct while engaging in protected activity, the Authority will review the record in the case to determine whether the conduct for which the grievant was disciplined (1) was committed while the grievant was engaged in activities protected by the Statute, and (2) exceeded the boundaries of the protection of the Statute. See, for example, Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri and American Federation of Government Employees (AFL-CIO), Local No. 3399, 14 FLRA 103 (1984). An award which sustains discipline for conduct committed while engaged in protected activity which did not exceed the bounds of the protection of the Statute is deficient because the award is contrary to the Statute. See Overseas Federation of Teachers and Department of Defense Dependents Schools, Mediterranean Region, 21 FLRA 757 (1986) (an arbitration award which restrains and interferes with protected employee rights is deficient as contrary to section 7102 of the Statute).

In this case, the expedited arbitration award denies the grievance. However, the award contains no opinion or discussion. Therefore, we cannot determine whether the Arbitrator sustained discipline for conduct which is protected by the Statute. 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. See Federal Correctional Institution and American Federation of Government Employees, AFL-CIO, Loc