U.S. Army Transportation Center, Fort Eustis and NAGE Local R4-6 (Authority decision, June 26, 1987)

Final FLRA decision. The Authority denies the union's exception to an arbitration award upholding a three-day suspension. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

A Fort Eustis employee was suspended for three days after allegedly making an inappropriate statement about a gun following a disciplinary meeting. The union disputed that she made the statement and challenged the suspension in arbitration. The arbitrator resolved conflicting accounts through credibility findings and denied the grievance. On review, the union objected to evidence admitted by the arbitrator and said he failed to consider alleged improper communications between agency officials. The Authority found no ground under its arbitration review standard to overturn the award and denied the exception.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a).
• Outcome: Union's exception denied; three-day suspension award stands.
• Key point: Disagreement with an arbitrator's credibility findings and weighing of evidence did not establish a deficient award.

Full text (FLRA public release)

[ v27 p821 ]

27:0821(89)AR

The decision of the Authority follows:

27 FLRA No. 89

DEPARTMENT OF THE ARMY
U.S. ARMY TRANSPORTATION CENTER
FORT EUSTIS, VIRGINIA
Activity

and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-6
Union

Case No. 0-AR-1368

DECISION

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Emer C. Flounders, 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 Department of the Army filed an opposition.

II. Background and Arbitrator's Award

An employee was suspended for 3 days for making a threatening statement about a gun after she had had a disciplinary meeting with her supervisor. The Union filed a grievance protesting the suspension and denying that the grievant had made the statement. The grievance was submitted to arbitration on the following stipulated issues:

I. What remarks regarding a gun were stated by the grievant to the supervisor . . . (and) were the remarks inappropriate?

II. Was the grievant disciplined twice for the same offense?

III. Was the disciplinary action taken for just and sufficient cause?

The Arbitrator stated that the positions of the parties were "diametrically opposed" and that his determination of the issues rested entirely on his findings of credibility. Based on his credibility findings, the Arbitrator concluded that the grievant was properly disciplined for making inappropriate remarks and denied the grievance.

III. Discussion

In its exception the Union contends that the Arbitrator's award "is based on an erroneous interpretation of statute." In support of the exception, the Union argues that the Arbitrator improperly admitted certain evidence and failed to consider the Union's assertion that ex parte communications occurred between the official proposing the grievant's suspension and the deciding official.

We conclude that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule or regulation or that it is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. See Supervisor of Shipbuilding, Conversion and Repair, United States Navy and Local R4-2, National Association of Government Employees (NAGE), 5 FLRA 235 (1981) (exceptions which constitute disagreement with an arbitrator's reasoning and conclusions on the merits of the issue before him and with his evaluation of the evidence and testimony presented to him, particularly the credibility of witnesses and the weight to be given their testimony, are not a basis for finding an award deficient). The Union's exception is denied.

Issued, Washington, D.C., June 26, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY