Naval Weapons Station, Yorktown and National Association of Government Employees, Local R4-96 (Authority decision, September 28, 1983)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to such an order unless the order involves an unfair labor practice under 5 U.S.C. § 7116. This decision resolves exceptions to an arbitration award and does not state that it involves an unfair labor practice.

Plain-English summary

An arbitrator reduced a Yorktown employee’s suspension from six days to three after finding that marijuana residue in the employee’s car violated an activity rule. NAGE argued that the arbitrator had not applied the proof standard for certain adverse actions. The Authority held that the cited standard did not apply to suspensions of 14 days or less. It denied the union’s exception, leaving the reduced suspension in place.

Decision snapshot

• Authority: 5 U.S.C. § 7121(e)(2).
• Outcome: Union exception denied; award reducing suspension to three days stands.
• Key point: The cited adverse action proof standard did not govern a short suspension.

Full text (FLRA public release)

[ v13 p133 ]

13:0133(32)AR

The decision of the Authority follows:

13 FLRA No. 32

NAVAL WEAPONS STATION,
YORKTOWN, VIRGINIA
(Activity)

and

NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES,
LOCAL R4-96
(Union)

Case No. O-AR-519

DECISION

This matter is before the Authority on an exception to the award of Arbitrator Robert J. Ables filed on behalf of the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and Part 2425 of the Authority's Rules and Regulations.

The dispute in this matter concerns the suspension of the grievant for six days for alleged unauthorized possession of marijuana in violation of an Activity regulation, based upon the finding of the residue of a marijuana cigarette in the grievant's automobile during a security search. The Arbitrator determined that the Activity had demonstrated that the grievant violated the applicable "zero tolerance" standard of the regulation and that some penalty was justified. However, in the circumstances presented he concluded that a reduction of the suspension was warranted. Therefore, the Arbitrator denied the grievance, but reduced the suspension from six days to three days.

As its exception, the Union contends that the Arbitrator's award is contrary to law, rule or regulation. More specifically, the Union essentially argues that the Agency failed to sustain and the Arbitrator failed to apply the burden of proof required by 5 U.S.C. 7121(e)(2) and 7701(c)(1).

Upon careful consideration of the entire record before the Authority, including the Union's contentions, the Authority concludes that the Union has failed to establish that the award is deficient. Thus, 5 U.S.C. 7701(c)(1) on its face pertains to appellate review procedures of the Merit Systems Protection Board and is not applicable to the Arbitrator's award in this case. Similarly, under 5 U.S.C. 7121(e)(2), in certain matters an arbitrator is governed by the standards set forth in 5 U.S.C. 7701(c)(1). However, Sec. 7121(e)(2) does not apply herein since it does not pertain to suspensions for 14 days or less. See, e.g., American Federation of Government Employees, AFL-CIO, Local 2094 and Veterans Administration Hospital, 2 FLRA 697 (1980).

Accordingly, the Union's exception is denied. Issued, Washington, D.C., September 28, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY