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 12 FLRA No. 8
 
 FEDERAL CORRECTIONAL
 INSTITUTION
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 1286
 Union
 
                                            Case No. O-AR-71
 
                                 DECISION
 
    This matter is now before the Authority on exceptions to the
 arbitration award, as clarified, of Arbitrator Edwin R. Render filed by
 the Department of Justice (the Agency) on behalf of the Activity.  The
 Union filed an opposition.
 
    This matter initially arose when the Union and the Activity submitted
 to arbitration the issue of whether an ordered 21-day suspension of the
 grievant for eight instances of alleged misconduct was for just cause as
 required by the parties' collective bargaining agreement.  The
 Arbitrator found that the grievant had been guilty of misconduct in five
 of the instances, and as his award assessed a suspension of seven days
 and a written warning.  The Union filed exceptions to the award, but the
 Authority determined that the exceptions provided no basis for finding
 the award deficient.  /1/ Subsequently, the Union filed a petition for
 review of the Authority's decision with the United States Court of
 Appeals for the District of Columbia Circuit.  In its brief to the
 court, the Union essentially argued that the Authority had erred when it
 did not find the award deficient as contrary to law.  Specifically, the
 Union maintained that this case must be decided under Executive Order
 11491, as amended (the Order), because all of the Activity's actions
 which gave rise to the grievance occurred in 1978, before the effective
 date of the Statute, and that under the Order the Arbitrator was
 precluded from sustaining any discipline that was based in part on
 participation in union activities.  Claiming that the Arbitrator
 expressly found that the grievant's ordered suspension was tainted in
 this respect, the Union's position was that the Arbitrator's award
 sustaining seven days of the ordered suspension is contrary to
 applicable law.  However, the Union in its exceptions to the award filed
 with the Authority had not contended that the award was contrary to law,
 and consequently the exceptions to the award were not considered on that
 basis.  For this reason, as well as the significance of the newly raised
 issue, the Authority requested of the court of appeals a remand so the
 Authority could consider this question before consideration by the
 court, and the court ordered the case remanded to the Authority.  /2/
 The Authority then determined that the Arbitrator's award would be found
 contrary to law "if it is established that management's action to
 discipline the grievant in any of the five instances where the
 Arbitrator found the grievant guilty of misconduct was partly based on
 consideration of the grievant's union activities." /3/ Because of
 uncertainty as to whether the Arbitrator had made an express finding in
 this regard, the Authority remanded the award to the parties to have
 them obtain a clarification from the Arbitrator.  /4/
 
    As his clarification, the Arbitrator stated that "all of the
 disciplinary action taken against (the grievant) was, in part, motivated
 by a consideration of (his) union activities." Thus, the Authority finds
 that the award is deficient as contrary to law because under the law
 applicable to this case, discipline of an employee is unlawful if
 motivated in part by the employee's union activities.  Therefore, the
 Arbitrator's award assessing a suspension of seven days and a written
 warning must be modified so as to prohibit any disciplining of the
 grievant.  /5/
 
    Accordingly, the Arbitrator's award is modified /6/ to provide as
 follows:
 
          Grievance sustained.  It is ordered that the directed 21-day
       suspension is set aside.
 
 Issued, Washington, D.C., April 28, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Federal Correctional Institution and American Federation of
 Government Employees, AFL-CIO, Local 1286, 3 FLRA 687 (1980).
 
 
    /2/ American Federation of Government Employees, AFL-CIO, Local 1286
 v. Federal Labor Relations Authority, No. 80-2105, August 18, 1981.  The
 Agency challenges consideration by the Authority of the issue of whether
 the award was contrary to law.  However, the Authority's actions herein
 are directly responsive to the Order of the court.
 
 
    /3/ Federal Correctional Institution and American Federation of
 Government Employees, AFL-CIO, Local 1286, 7 FLRA No. 50 (1981), at 5.
 The Agency in its exceptions contends that the Authority should have
 applied the law under the Federal Service Labor-Management Relations
 Statute (the Statute).  However, although the Union's exceptions were
 filed under the Statute, it is the law under the Order which is
 applicable to this case because all of the Activity's actions which
 resulted in the ordered suspension of the grievant occurred in 1978 when
 the Order was still in effect.  U.S. Naval Station, Mayport, Florida and
 American Federation of Government Employees, Local 2010, AFL-CIO, 6 FLRA
 No. 26 (1981).
 
    The Agency similarly argues that the Authority lacks jurisdiction
 because the award relates to a long-term suspension covered by 5 U.S.C.
 7512 (Supp. V 1981).  However, this argument is without merit because at
 the time of the ordered 21-day suspension, such an action was not
 covered by the predecessor provision to that section (see 5 U.S.C.
 chapter 75 (Supp. II 1978);  5 CFR part 752 (1978)).
 
 
    /4/ The Agency disputes the propriety of this action, arguing that no
 prior notice was given to it.  However, the Agency's argument is without
 merit since notice was given to the Bureau of Prisons which is and has
 been the representative of the Government throughout the administrative
 proceedings.
 
 
    /5/ In view of this decision, it is unnecessary for the Authority to
 resolve the Agency's exception contending that the Arbitrator in
 clarifying his award was not authorized himself to use language setting
 aside the ordered suspension.
 
 
    /6/ The decretal portion of our earlier decision in this matter (see
 note 1, supra) is set aside to the extent it is inconsistent with our
 decision and order herein. 
 
 
 

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