Department of the Air Force, McGuire Air Force Base (Activity) and American Federation of Government Employees, Local No. 1778 (Union) (Authority decision, July 16, 1981)

Final FLRA decision. This order concerns exceptions to an arbitration award under 5 U.S.C. § 7122. Under 5 U.S.C. § 7123(a)(1), such orders 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

McGuire Air Force Base reprimanded two union officials for refusing work orders. An arbitrator found the refusals were misconduct and denied their grievance. The Authority rejected the union’s objections to the discipline and the arbitrator’s factual findings. It sustained the award.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; reprimand grievance award upheld.
• Key point: Union office did not excuse refusal to obey proper work orders.

Full text (FLRA public release)

[ v06 p283 ]

06:0283(50)AR

The decision of the Authority follows:

6 FLRA No. 50

DEPARTMENT OF THE AIR
FORCE, MCGUIRE AIR FORCE
BASE
Activity

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL NO. 1778
Union

Case No. O-AR-125

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR G. ALLAN DASH, JR. FILED BY THE UNION UNDER SECTION 7122(A)
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
7122(A)).

ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE
WHEN THE ACTIVITY ISSUED LETTERS OF REPRIMAND TO THE GRIEVANTS AS THE
RESULT OF ALLEGED REFUSALS TO COMPLY WITH PROPER WORK ORDERS. THE UNION
FILED A GRIEVANCE CONTENDING THAT THE ISSUANCE OF THE LETTERS OF
REPRIMAND WAS IN VIOLATION OF THE PARTIES' COLLECTIVE BARGAINING
AGREEMENT AND THE MATTER WAS ULTIMATELY SUBMITTED TO ARBITRATION.

THE ARBITRATOR FOUND THAT THE IMPOSITION OF THE LETTERS OF REPRIMAND
DID NOT VIOLATE THE PARTIES' AGREEMENT. HE FOUND THAT "THE GRIEVANTS'
UNSUSTAINABLE REFUSAL TO CARRY OUT THE ORDERS GIVEN THEM . . .
CONSTITUTED SIGNIFICANT MISCONDUCT THAT CALLED FOR THE IMPOSITION OF
SEVERE DISCIPLINARY ACTION." HE ALSO FOUND THAT, CONTRARY TO THE
CONTENTIONS OF THE UNION, THE ISSUANCE OF THE LETTERS DID NOT VIOLATE
AIR FORCE REGULATION 40-750. THE ARBITRATOR FURTHER FOUND THAT THE TWO
GRIEVANTS, IN EFFECT, USED THEIR OFFICIAL UNION CAPACITIES AS A CLOAK TO
TEST THE PROPRIETY OF A SUPERVISORY ORDER, IMPROPERLY CONCLUDING THAT
UNION POSITIONS WOULD PROTECT THEM FROM ANY POTENTIAL DISCIPLINE.
HOWEVER, ACCORDING TO THE ARBITRATOR, REFUSAL OF A SUPERVISORY ORDER IS
NOT A "PROTECTED ACTIVITY" FOR A UNION OFFICIAL UNDER THE AGREEMENT OR
ANY FEDERAL STATUTE THAT MAKES SUCH UNION OFFICIAL IMMUNE FROM
APPROPRIATE DISCIPLINE. NOR, ACCORDING TO THE ARBITRATOR, WAS THERE ANY
PROOF IN THE RECORD THAT THE OFFICIAL UNION CAPACITIES OF THE TWO
GRIEVANTS CONTRIBUTED IN ANY FASHION TO THE DISCIPLINE IMPOSED AGAINST
THEM FOR REFUSING TO CARRY OUT PROPER WORK ORDERS. FOR THE FOREGOING
REASONS, THE ARBITRATOR DENIED THE GRIEVANCE.

THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/
AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425.
THE ACTIVITY FILED AN OPPOSITION.

IN ITS FIRST EXCEPTION THE UNION CONTENDS THE AWARD IS CONTRARY TO
AIR FORCE REGULATION 40-750, DEALING WITH CERTAIN RESPONSIBILITIES OF
SUPERVISORS AND OPERATING OFFICIALS. IN SUPPORT OF THIS EXCEPTION, THE
UNION ESSENTIALLY CONTENDS THAT THE ACTION TAKEN AGAINST THE GRIEVANTS
WAS OVERLY HARSH AND NOT WITHIN THE GUIDELINES OF THE CITED REGULATION.

PURSUANT TO SECTION 7122(A)(1) OF THE STATUTE, THE AUTHORITY WILL
FIND AN AWARD DEFICIENT IF THE AWARD IS CONTRARY TO "LAW, RULE, OR
REGULATION." WITHOUT DECIDING WHETHER THE REGULATION CITED BY THE UNION
IN SUPPORT OF ITS EXCEPTION CONSTITUTES A "RULE OR REGULATION" WITHIN
THE MEANING OF SECTION 7122(A)(1) OF THE STATUTE, THE AUTHORITY FINDS
THAT IN THIS CASE THE UNION HAS IN NO MANNER DEMONSTRATED THAT THE AWARD
IS CONTRARY TO THE REGULATION. IT IS NOTED THAT THE ARBITRATOR
SPECIFICALLY FOUND THAT THE TERMS OF THE PARTIES' AGREEMENT DID NOT
EXTEND TO AN EMPLOYEE THE RIGHT TO REFUSE TO CARRY OUT A WORK ORDER
"PROVIDED ITS PERFORMANCE DOES NOT EXPOSE SUCH EMPLOYEE TO A CLEAR
DANGER TO LIFE OR HEALTH OR TO SOMETHING GROSSLY DEMEANING TO HIS
PERSON" AND THAT THE EMPLOYEES WERE RIGHTLY EXPOSED TO DISCIPLINE FOR
THEIR REFUSAL TO CARRY OUT THE WORK ORDER. MOREOVER, THE ISSUE OF THE
APPROPRIATENESS OF THE DISCIPLINE IMPOSED WAS SPECIFICALLY ADDRESSED BY
THE ARBITRATOR IN THE COURSE OF RESOLVING THE DISPUTE. THE UNION IS
SIMPLY ATTEMPTING TO RELITIGATE THE MERITS OF THE GRIEVANCE BEFORE THE
AUTHORITY. SUCH ASSERTIONS PROVIDE NO BASIS FOR FINDING AN AWARD
DEFICIENT. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2284, 3 FLRA NO. 35(1980).
THEREFORE, THE UNION'S FIRST EXCEPTION PROVIDES NO BASIS FOR FINDING THE
AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE
AUTHORITY'S RULES AND REGULATIONS.

IN ITS SECOND EXCEPTION THE UNION CONTENDS THE AWARD IS CONTRARY AND
CONTRADICTORY TO THE FACTS ESTABLISHED AT THE HEARING, SPECIFICALLY
REGARDING THE AWARENESS OF THE INVOLVED EMPLOYEES OF THE CHANGED POLICY
IN PROCEDURE INVOLVED IN THIS MATTER. THE UNION ALSO REFERS TO SPECIFIC
STATEMENTS OF THE ARBITRATOR IN HIS OPINION AND ASSERTS THAT THE
ARBITRATOR MADE "HIGHLY SPECULATIVE" STATEMENTS AND "ENTER(ED) THE REALM
OF SPECULATION."

THE UNION'S SECOND EXCEPTION CONSTITUTES DISAGREEMENT WITH THE
ARBITRATOR'S FINDINGS OF FACT AND WITH HIS REASONING AND CONCLUSIONS.
IT IS WELL ESTABLISHED THAT SUCH ASSERTIONS PROVIDE NO BASIS FOR FINDING
AN AWARD DEFICIENT. E.G., DEPARTMENT OF THE AIR FORCE CIVILIAN
PERSONNEL BRANCH, CARSWELL AIR FORCE BASE, TEXAS AND AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, LOCAL 1364, 5 FLRA NO. 7(1981). THEREFORE, THE
UNION'S SECOND EXCEPTION PROVIDES NO BASIS FOR FINDING AN AWARD
DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S
RULES AND REGULATIONS.

FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2425.4 OF THE
AUTHORITY'S RULES AND REGULATIONS, WE HEREBY SUSTAIN THE ARBITRATOR'S
AWARD.

ISSUED, WASHINGTON, D.C., JULY 16, 1981

RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES: ---------------

/1/ 5 U.S.C. 7122(A) PROVIDES:

(A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
AUTHORITY AN EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE
ARBITRATION (OTHER THAN AN AWARD RELATING TO A MATTER DESCRIBED IN
SECTION 7121(F) OF THIS TITLE). IF UPON REVIEW THE AUTHORITY FINDS THAT
THE AWARD IS DEFICIENT--

(1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;

OR

(2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
PRIVATE SECTOR

LABOR-MANAGEMENT RELATIONS;

THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH
APPLICABLE LAWS, RULES, OR REGULATIONS.