U.S. Department of the Interior, National Park Service, Fire Island National Seashore and American Federation of Government Employees, Local 3432 (Authority decision, January 30, 1990)

Read the official release (flra.gov)

Final FLRA decision. The Authority denies the union's exceptions to an arbitration award upholding a five-day suspension. 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 decide an unfair labor practice.

Plain-English summary

A National Park Service boat operator left a fuel pump running unattended, and gasoline spilled into the boat. A supervisor instructed him to clean the boat and not start its engine, but he later carried a work crew aboard it. An arbitrator found that the operator's actions were unsafe and upheld a five-day suspension. The union argued that management should have used performance procedures rather than misconduct discipline and challenged the arbitrator's factual findings. The Authority held that the agency could use misconduct procedures for this conduct and that the remaining objections did not establish a defect in the award. It denied the union's exceptions.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a).
• Outcome: Union's exceptions denied; five-day suspension upheld.
• Key point: The agency could use chapter 75 discipline for the boat operator's conduct.

Full text (FLRA public release)

[ v34 p659 ]
34:0659(112)NG

The decision of the Authority follows:

34 FLRA NO. 112

U.S. DEPARTMENT OF THE INTERIOR

NATIONAL PARK SERVICE

FIRE ISLAND NATIONAL SEASHORE

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3432

0-AR-1642

DECISION

January 30, 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 Walter L. Eisenberg. The Arbitrator found

that a 5-day suspension of the grievant was for "such cause as to

justify the Agency's disciplinary action against him 'to promote

the efficiency of the Service', in accordance with applicable

law, rule, regulation, and the Basic Agreement." Award at 12.

The American Federation of Government Employees, Local 3432

(the Union) filed exceptions to the award 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 U.S. Department of the Interior, National Park Service, Fire

Island National Seashore (the Agency) filed an opposition to the

exceptions.

We conclude that the Union has not established that the

award is contrary to any law, rule or regulation or that it is

deficient on any other grounds similar to those applied by the

Federal courts in private sector labor relations cases.

Consequently, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant is a licensed motor boat operator. On May 21,

1987, while filling the fuel tank of an Agency vessel, the

grievant wedged a screwdriver under the nozzle handle of the gas

pump hose, allowing the pump to operate unattended. The grievant

left the vessel, and the nozzle fell out of the gas tank's filler

neck and pumped gasoline onto the deck, floor and other areas of

the unattended boat. An Agency supervisor, who smelled gas and

observed the spill, directed the grievant not to start the boat's

motor and to hose down the boat. After helping the grievant pull

the boat to a bulkhead where a water hose was available, the

supervisor left to take a telephone call. The grievant then

washed down the areas of the boat where the gas had spilled, took

a work crew on board, and transported the crew to Fire Island.

When the boat returned from Fire Island, it was towed to a

ramp and hauled out of the water for inspection. A member of the

repair staff found about 12 gallons of gas and water, but no

oil, in the boat's rear bilge. The foam around fuel tanks was

covered with gas, creating a "potentially explosive" situation

from any electrical spark. Award at 4. The process of cleaning

the boat and assuring its safety extended over 4 days.

The Superintendent of the Fire Island National Seashore

suspended the grievant for 5 days, based on unsafe operation of

the vessel, under Article 13, Section 1 of the parties'

negotiated agreement. The Union filed a grievance which proceeded

to arbitration.

The Arbitrator denied the grievance. The Arbitrator found

that the Agency had the option to suspend the grievant under the

provisions of either 5 U.S.C., chapter 75, involving discipline

for misconduct, or under 5 U.S.C., chapter 43, concerning

performance-based discipline. Thus, the Arbitrator decided that

the fact that the Agency chose to discipline the grievant under

chapter 75, rather than chapter 43, did not invalidate the

Agency's action.

The Arbitrator then found that the 5-day suspension for

unsafe operation of the vessel was appropriate and reasonable

under the circumstances. The Arbitrator first found that the

composition of the fuel, which contained no oil, found in the

bilges and elsewhere on the boat during inspection and cleaning

established that the fuel was from the original gasoline spill.

The Arbitrator reasoned that, if the fuel had come from

a leak in the boat's fuel line or fuel tank, as alleged by the

Union, the fluid would have been a mixture of gasoline and oil,

because both are combined in the fuel tank to power the boat.

Further, the Arbitrator decided that it was likely that, in

view of the extensive work required to cleanse the boat of the

spilled fuel, the pumping of gasoline into the boat lasted

significantly longer than the few seconds estimated by the

grievant. Moreover, the Arbitrator determined that it was

"evident that the spill involved had created a serious problem,

with or without (the grievant's) knowledge at the time." Award at

10.

The Arbitrator found that the grievant exercised faulty

judgment after the discovery that gasoline was being pumped into

the boat itself rather than into the gas tank. The Arbitrator

noted that the grievant was directed by an Agency official not to

start the engine or create a spark and to hose down the boat. The

Arbitrator found that the grievant "obeyed one of those

instructions but he disobeyed the other. He did hose gas off

various surfaces of the boat, but he did thereafter start the

engines, something he was told not to do." Id. The Arbitrator

concluded that the grievant's actions were inconsistent with safe

boat operation and work practices as required by the grievant's

position description, the applicable performance standards and

provisions of the parties' negotiated agreement. Consequently,

the Arbitrator found that the 5-day suspension was an appropriate

and reasonable penalty.

III. Exceptions

The Union contends that the Arbitrator's award is deficient

because: (1) it is contrary to law, rule and regulation, in that

the grievant was cited for misconduct rather than unacceptable

performance; (2) management did not prove its case by a

preponderance of the evidence; and (3) the Arbitrator misstated

important facts in the award when he failed to note that the

grievant customarily instructed his passengers not to smoke when

on board the boat.

IV. Opposition

The Agency asserts that the award is not contrary to law,

rule or regulation. It also contends that the Agency's case was

proven by a preponderance of the evidence, and that the

Arbitrator did not misstate any important facts in his award.

V. Analysis and Conclusion

We conclude that the Union has failed to establish that the

Arbitrator's award is deficient on any of the grounds described

in section 7122(a) of the Statute. The Union has not established

that the award is contrary to any law, rule or regulation or that

it is deficient on any other grounds similar to those applied by

the Federal courts in private sector labor relations cases.

Initially, we note that the second and third of the Union's

three exceptions do not provide bases for finding the award to be

deficient. That is, these two exceptions, alleging that the

Arbitrator: (1) based his award on something less than a

preponderance of the evidence, and (2) misstated certain facts,

are not "grounds similar to those applied by Federal courts in

private sector labor-management relations" upon which we could

find the award to be deficient. See section 7122(a)(2) of the

Statute.

The second exception, alleging that the award was not based

on a preponderance of the evidence, is an attempt to relitigate

this case before the Authority. This exception constitutes

nothing more than disagreement with the Arbitrator's findings of

fact, reasoning and conclusions, and does not provide a basis for

finding the award deficient. See, for example, Department of the

Army, Headquarters, United States Army Aviation Center, Fort

Rucker, Alabama and American Federation of Government Employees,

Local 1815, 33 FLRA 53 (1988) (exceptions constituting nothing

more than an attempt to relitigate grievance's merits and a

disagreement with arbitrator's findings of fact, reasoning and

conclusions provide no basis for finding award deficient).

The Union's third exception is based on its contention that

the arbitrator "misstated important facts in the decision."

Exceptions at 1. The alleged misstatement concerns the

Arbitrator's statement that "(o)ne of the staff who was a

passenger complained to (the grievant) about a smell of gas and

(the grievant) told the passengers not to smoke." Award at 3. The

Union asserts that the grievant "instructed all employees not to

smoke on the boat everyday, because it was a safety requirement."

Exceptions at 1.

Although the Union contends that the alleged misstatement

concerned an important fact, the Union does not demonstrate--or

contend--that in the absence of the alleged misstatement, the

Arbitrator would have reached a different result. The Union has

not, therefore, demonstrated that the award is based on

a nonfact. We note in this regard that although the Arbitrator

referenced the Union's assertion that the grievant "always told

passengers on his boats not to smoke on board--not only on that

occasion(,)" nothing in the Arbitrator's award leads to the

conclusion that the Arbitrator based his decision in whole or in

part on evaluation of this assertion. Award at 5. Accordingly,

even if we accepted the Union's position that the Arbitrator's

statement in question was erroneous, the error would not warrant

setting aside the award. See, for example, U.S. Department of

Labor and Local 12, American Federation of Government Employees,

24 FLRA 435, 440 (1986) (an award will be found deficient on the

ground that it is based on a nonfact "when it is demonstrated

that the central fact underlying the award is concededly

erroneous and in effect is a gross mistake of fact but for which

a different result would have been reached."). Consequently, we

reject the Union's third exception.

The Union's first exception, alleging that the award

conflicts with law, rule or regulation, states a basis for

finding the award to be deficient under section 7122(a)(1) of the

Statute. However, we find no basis in the Union's argument for

concluding that the Arbitrator erred in determining that

discipline was properly imposed under 5 U.S.C., chapter 75. In a

case such as this, an agency has the authority to take

performance-based disciplinary action under either chapter 43 or

chapter 75. See Lovshin v. Department of the Navy, 767 F.2d 826,

843 (Fed. Cir. 1985). Accordingly, the Union has not shown that

the disciplinary action violated law, rule or regulation.

Consequently, based on the above findings, we will deny the

Union's exceptions.

VI. Decision

The Union's exceptions are denied. [

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