U.S. Department of Commerce, NOAA, National Weather Service, Southern Region and National Weather Service Employees Organization, MEBA (Authority decision, August 31, 1987)

Final FLRA decision. The Authority denies the union's exceptions to an award that reduced a one-day suspension to a reprimand for writing part of a union letter on duty without requesting official time. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. The arbitrator also rejected an unfair labor practice allegation concerning an agency grievance.

Plain-English summary

A National Weather Service employee and union official used an agency computer while on duty to write a letter about union business and labor relations. An arbitrator found some discipline justified but reduced his one-day suspension to an official reprimand. The arbitrator also found a procedural error harmless and rejected a claim that the agency filed a related grievance in bad faith. The union challenged the award, but the Authority found no legal defect and denied its exceptions.

Decision snapshot

• Authority: Exceptions to arbitration awards under 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; reprimand in place of suspension stands.
• Key point: Disagreement with the arbitrator's factual findings and conclusions did not justify setting aside the award.

Full text (FLRA public release)

[ v28 p768 ]
28:0768(99)AR

The decision of the Authority follows:

28 FLRA NO. 99

U.S. DEPARTMENT OF COMMERCE
NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, NATIONAL WEATHER
SERVICE, SOUTHERN REGION, NORTH
LITTLE ROCK, ARKANSAS

Agency

and

NATIONAL WEATHER SERVICE
EMPLOYEES ORGANIZATION
MEBA, AFL-CIO

Union

Case No. 0-AR-1379

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Charles N. Carnes filed by the Union under section 7122 of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.

II. Background and Arbitrator's Award

The grievant, a Union official, was given a 1-day suspension for writing a letter concerning internal Union business as well as labor-management relations to another Union official. The grievant wrote the letter while on duty, used the Agency computer, and did not ask permission or request official time. A grievance was filed contesting the suspension, and the matter was submitted to arbitration.

The Arbitrator framed the issues to be resolved as (1) whether the suspension was for just cause and promoted the efficiency of the service, (2) whether the grievant was deprived of a neutral decisionmaker to evaluate the proposed suspension, and (3) whether the Agency committed an unfair labor practice when it filed a related grievance against the Union.

As to the first issue, the Arbitrator found that although the grievant's letter primarily concerned labor-management relations, a small portion of the letter concerned internal Union business and, therefore, discipline was warranted. He concluded, however, that the 1-day suspension did not promote the efficiency of the service and reduced the suspension to an official reprimand.

As to the second issue, the Arbitrator found that the grievant was improperly denied the right to have a neutral decisionmaker evaluate his notice of proposed suspension. He concluded, however, that the Agency's error was corrected at a subsequent step of the grievance procedure and that the error was not harmful.

As to the third issue, the Arbitrator found that there was no evidence that the related grievance filed by the Agency had been brought in bad faith or with an impermissible motive. He concluded that the Agency did not commit an unfair labor practice by filing the grievance. Accordingly, as his award the Arbitrator denied the grievance in part and sustained it in part.

III. Exceptions

In its first exception, the Union reiterates the arguments made before the Arbitrator that writing the letter while on duty was a proper use of duty time and that it did not interfere with the Agency's operation. The Union contends that the Arbitrator erred in finding otherwise.

In its second exception, the Union argues that its post-hearing brief establishes that the grievant's suspension constituted an unfair labor practice and contends that the Arbitrator erred as a matter of law in finding otherwise.

IV. Decision

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 the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. See, for example, American Federation of Government Employees, Local 2206 and Department of Health and Human Services, Social Security Administration, Southeastern Program Service Center, 6 FLRA 568 (1981) (exceptions which constitute disagreement with an arbitrator's findings of fact, reasoning and conclusions based on the evidence before him, and an attempt to relitigate the merits of the grievance before the Authority do not provide a basis for finding an award deficient). Accordingly, the Union's exceptions must be denied.

Issued, Washington, D.C., August 31, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY