U.S. Army Missile Command and American Federation of Government Employees, Local 1858 (Authority decision, June 9, 1988)

Final FLRA decision. The Authority denies the union's exceptions to an arbitration award reducing an employee's suspension from five days to three days. 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. This decision does not address an unfair labor practice.

Plain-English summary

An Army Missile Command employee received a five-day suspension after causing a workplace disturbance. An arbitrator found that discipline was warranted but reduced the suspension to three days because management had not completed the investigation required by the labor agreement. The union challenged the arbitrator's reading of the agreement and his treatment of testimony. The Authority found that those objections amounted to disagreement with the arbitrator's findings and did not establish a defect under the statutory review standard. It denied the union's exceptions, leaving the reduced suspension and make-whole direction in place.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a).
• Outcome: Union's exceptions denied; three-day suspension and make-whole award remain in effect.
• Key point: Disagreement with an arbitrator's interpretation of an agreement or evaluation of evidence does not establish a reviewable defect.

Full text (FLRA public release)

[ v32 p344 ]
32:0344(54)AR

The decision of the Authority follows:

32 FLRA No. 54

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. ARMY MISSILE COMMAND

Activity

and

AFGE, LOCAL 1858

Union

Case No. 0-AR-1526

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator John A. Griffin 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 (the Agency) filed an opposition.

The grievant was suspended for causing some disturbance and interference with work. The Arbitrator found that discipline of the grievant was warranted, but also found that the Activity violated the parties' collective bargaining agreement by not conducting a thorough investigation of the matter. The Arbitrator mitigated the grievant's penalty from a 5-day suspension to a 3-day suspension. For the reasons stated below, the Union's exceptions are denied.

II. Background and Arbitrator's Award

The grievant was disciplined for creating a disturbance. After the grievant was involved in a second incident causing another disturbance, he was suspended for 5 days. The Union filed a grievance alleging that the grievant's suspension was arbitrary and capricious. It argued that the Activity did not satisfy the requirements of Article 67, Section c of the parties' agreement, which provides that disciplinary actions shall be initiated only after a thorough preliminary investigation has been completed. The issue before the Arbitrator was whether the Activity was justified in assessing a 5-day suspension for a second offense of creating a disturbance.

The Arbitrator determined that the grievant caused some disturbance and interference with work, but that the Activity did not make the thorough investigation required by the parties' agreement. Therefore, he found that the penalty must be mitigated because management was also "at fault." Arbitrator's Award at 8. The Arbitrator reduced the grievant's 5-day suspension to a 3-day suspension, and directed that the grievant be made whole for any losses he sustained.

III. Positions of the Parties

The Union asserts that the Arbitrator erred in applying the provisions in Article 67, Section c of the parties' agreement and in improperly ignoring certain testimony. The Agency asserts that the Union is simply attempting to relitigate the case.

IV. Discussion

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 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. The Union's arguments constitute nothing more than disagreement with the Arbitrator's interpretation and application of the parties' agreement and his evaluation of the evidence. Such disagreement provides no basis for finding an award deficient. See, for example, Social Security Administration, Office of Hearings and Appeals, Kansas City, Missouri and American Federation of Government Employees, Local 1336, 29 FLRA 1285 (1987) (a contention which merely constitutes disagreement with the arbitrator's evaluation of evidence and testimony provides no basis for finding an award deficient); American Federation of Government Employees, General Committee and Social Security Administration, 28 FLRA 1028 (1987) (disagreement with the arbitrator's interpretation and application of the parties' agreement provides no basis for finding an award deficient).

Accordingly, the Union's exceptions are
denied.

Issued, Washington, D.C.,

_______
Jerry L. Calhoun, Chairman

Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

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