Federal Employees Metal Trades Council and Department of the Navy, Portsmouth Naval Shipyard (Authority decision, June 13, 1983)

Final FLRA decision. The Authority denied exceptions to an arbitration award under 5 U.S.C. § 7122. Judicial review of an arbitration order is generally excluded by 5 U.S.C. § 7123(a)(1) unless it involves an unfair labor practice under § 7118. This decision does not address an unfair labor practice.

Plain-English summary

A shipyard employee was suspended for ten days for entering a restricted area in violation of safety rules. An arbitrator upheld the discipline after considering the union’s arguments about representation and the evidence supporting the charge. The arbitrator had reduced the suspension from ten days to five days. The union repeated objections to the arbitrator’s assessment of the perimeter monitor’s account. The Authority found no reviewable defect and denied the exceptions.

Decision snapshot

• Authority: Arbitration exception review under 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; the arbitrator's five-day suspension award remained in place.
• Key point: Rearguing the evidence before the Authority did not establish a deficient award.

Full text (FLRA public release)

[ v12 p192 ]

12:0192(47)AR

The decision of the Authority follows:

12 FLRA No. 47

FEDERAL EMPLOYEES METAL
TRADES COUNCIL
Union

and

DEPARTMENT OF DEFENSE,
DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD
Activity

Case No. O-AR-311

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Albert G. Murphy 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 dispute in this matter concerns the suspension of the grievant for 10 days for entering a restricted area in violation of safety regulations. A grievance was filed and submitted to arbitration questioning whether the discipline was handled in accordance with the provision of the parties' collective bargaining agreement pertaining to union representation and whether the grievant was disciplined for just cause.

In agreement with the Union, the Arbitrator determined that under the parties' collective bargaining agreement, the statement made by the grievant to an investigator of the radiation protection branch could not be used as a basis for the suspension of the grievant. However, contrary to the Union's position, the Arbitrator determined that the suspension was independently based on a statement of the perimeter monitor who was an eyewitness to the event and that this statement supported the charge that the grievant had violated the safety regulation. Accordingly, the Arbitrator ruled that there was just cause for discipline but that under the circumstances the suspension should be reduced to five days.

In its exceptions the Union contends that the Arbitrator exceeded his authority and that the award does not draw its essence from the agreement and is based on a nonfact. The Union's position in support of its exceptions is essentially that because a statement made by the grievant when the grievant had not been afforded union representation was relied upon by the Activity as supporting the suspension of the grievant, the Arbitrator was precluded from finding that there was just cause for the discipline.

The Authority concludes that the exceptions do not establish that the award is deficient. As noted, the Union made essentially the same argument to the Arbitrator which he rejected by finding other grounds for sustaining the discipline. In arguing that the discipline could not be supported by the statement of the perimeter monitor alone, the Union is merely disagreeing with the Arbitrator's reasoning and evaluation of evidence and testimony and is attempting to relitigate the merits of the grievance before the Authority. Accordingly, the exceptions provide no basis for finding the award deficient and they are denied. E.g., U.S. Marine Corps Logistics Base, Barstow and American Federation of Government Employees, AFL-CIO, Local 1482, 10 FLRA No. 14 (1982). Issued, Washington, D.C., June 13, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY