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35:0168(20)AR - - Navy, Naval Oceanographic Office, Bay St. Louis, MS and AFGE Local 1028 - - 1990 FLRAdec AR - - v35 p168

[ v35 p168 ]
The decision of the Authority follows:

35 FLRA No. 20













March 21, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator James J. Odom, Jr. filed by the Union pursuant to 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 to the exceptions.

The Arbitrator denied a grievance over the Agency's decision to suspend the grievant for 12 days. The Union contends that the award is contrary to law and the parties' collective bargaining agreement. For the following reasons, we deny the exceptions.

II. Background and Arbitrator's Award

The grievant, a Physical Scientist, was assigned to temporary shipboard duty. A series of incidents resulted in the grievant's return to his primary station, where he was given notice of a proposed 12-day suspension.

The notice cited five incidents as the basis for the suspension. The grievant was charged with: (1) interfering in an internal disciplinary matter of the Lavino Shipping Company; (2) publicly stating that he would not attend training as ordered by his superior, the Senior Naval Oceanographic Scientist (the SNS); (3) riffling through the unit's time and attendance sheets without permission, publicly berating the SNS, and continuing the disrespectful behavior when called to the SNS's stateroom; (4) addressing another employee in a vulgar and threatening manner at the meal table; and (5) being uncooperative, using offensive language and being disrespectful during a discussion with the SNS.

The grievant submitted a response to the proposed suspension. Thereafter, the Agency suspended the grievant for 12 days as proposed in the notice. The suspension was grieved and submitted to arbitration.

The issues before the Arbitrator were: "Whether the grievant's twelve-day suspension was for just cause and not in violation of the parties' collective bargaining agreement; and if not, what should the remedy be?" Award at 5.

The Arbitrator denied the grievance. Initially, he found that the first, second, and fourth charges could not support the disciplinary action. As to the third charge, the Arbitrator found that although "flipping through the time and attendance records . . . was not a violation of any recognized rule," the subsequent public "berating" of the SNS constituted "disrespectful and disruptive conduct." Id. at 10-11. Further, the Arbitrator found "ample testimony" to support the Agency's version of the confrontation that occurred in the SNS's stateroom. Id. at 11.

The Arbitrator found the fifth charge to be "the most serious breach" committed by the grievant. Id. at 12. The Arbitrator noted that three witnesses testified that the grievant swore and made an obscene gesture to the SNS. According to the Arbitrator, such conduct "went far past any minimum definition of disruptive and disrespectful behavior" and was "thoroughly and completely disruptive and disrespectful." Id.

In sum, the Arbitrator found that on two occasions the grievant's "conduct was both disruptive and disrespectful to the extent that the behavior put in jeopardy the success of the mission." Id. at 14. The Arbitrator determined that a 12-day suspension would not be unreasonably severe for either of the offenses and "certainly is not for both offenses." Id. at 13. The Arbitrator stated that he had "no doubt that this discipline was designed to promote the efficiency of the service and that it was entirely reasonable in its severity, considering the circumstances." Id. He found no evidence to support the grievant's contentions that the Agency considered improper criteria in arriving at the 12-day suspension or that there was any bias against the grievant.

III. Union's Exceptions (*/)

As its first exception, the Union contends that the Arbitrator failed to address all "affirmative defenses" raised by the Union. Exceptions at 1. Specifically, the Union asserts that the Arbitrator did not address its claims that the Agency: (1) committed harmful error by considering improper criteria in determining to suspend the grievant for 12 days; (2) violated the parties' collective bargaining agreement and prejudiced the grievant's rights; and (3) failed to demonstrate by a preponderance of the evidence that the suspension would promote the efficiency of the service.

As its second exception, the Union asserts that the Arbitrator failed to consider relevant court decisions. Finally, the Union contends that the Arbitrator misinterpreted the evidence and made erroneous findings of fact.

IV. Analysis

We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. The Union has failed to establish that the award is contrary to any law, rule, or regulation or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases.

With regard to the Union's first exception, we note that the harmful-error rule does not apply to the 12-day suspension in this case because the rule does not apply to suspensions of 14 days or less. See U.S. Department of the Air Force, Air Force Logistics Command, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 34 FLRA No. 160 (1990). We also note that the Arbitrator found that the Agency did not consider any improper criteria in reaching its decision to suspend the grievant and that the discipline was designed to promote the efficiency of the service and was entirely reasonable in its severity. In our view, the Union's first exception constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the parties' collective bargaining agreement. Such disagreement provides no basis for finding the award deficient. See, for example, American Federation of Government Employees, Local 3954 and Federal Bureau of Prisons, Federal Correctional Institution, Phoenix, Arizona, 32 FLRA 782, 783-84 (1988).

Similarly, the contention that the Arbitrator failed to consider relevant court decisions amounts only to a disagreement with the legal reasoning and conclusions of the Arbitrator. The Union's final exception constitutes mere disagreement with the Arbitrator's evaluation of the evidence. None of these contentions provides a basis for finding an award deficient. See, for example, U.S. Army Transportation Center, Fort Eustis, Virginia 23604-5353 and Local R4-6, National Association of Government Employees, 32 FLRA 1250 (1988).

V. Decision

The Union's exceptions are denied.

(If blank, the decision does not have footnotes.)

*/ The Union requests that the Authority "obtain the copies of the taped [h]earing" in this case. Exceptions at 14. Because there is a sufficient record in this case on which the Authority can base a decision, the Union's request is denied.