12:0196(49)AR - IRS, Philadelphia Region and NTEU -- 1983 FLRAdec AR
[ v12 p196 ]
The decision of the Authority follows:
12 FLRA No. 49 INTERNAL REVENUE SERVICE, PHILADELPHIA REGION Activity and NATIONAL TREASURY EMPLOYEES UNION Union Case No. O-AR-276 DECISION This matter is before the Authority on an exception to the award of Arbitrator James M. Harkless filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. /1/ Grievances were submitted to the Arbitrator objecting, respectively, to the written reprimand of the grievant and to the grievant being charged with eight hours of absence without leave (AWOL). The Arbitrator determined that the written reprimand was not supported by substantial evidence. Accordingly, the Arbitrator sustained that grievance and directed the Activity to remove the letter of reprimand from its files. As to the eight hours of AWOL, the Arbitrator determined that it was not unreasonable for the Activity to have charged the grievant with AWOL and accordingly he denied that grievance. As to its exception, "(t)he Agency submits only that the Arbitrator has reached a clearly erroneous conclusion of law in ordering the written reprimand be removed from the grievant's record. This conclusion is in error because the Arbitrator failed to recognize that the letter of reprimand was issued in large part as a result of the AWOL." In support, the Agency principally argues that "(t)he Arbitrator treated the letter of reprimand as having been issued solely for the grievant's failure to follow a direct order of supervisor Allen. . . . The Arbitrator has overlooked, however, the other basis for the letter of reprimand, which was the charge of AWOL itself." The Authority concludes that the exception provides no basis for finding the award deficient. Contrary to the assertion of the Agency, the Arbitrator did not treat the reprimand as having been issued solely for the grievant's failure to follow a direct order. Rather, the Arbitrator expressly stated that the reprimand was "based primarily on the grievant's failure to follow a 'direct order,'" and in his discussion the Arbitrator accordingly focused on the primary basis for the reprimand and based his ruling upon "the totality of the evidence." The fact that the Arbitrator did not specifically mention the AWOL basis of the reprimand in his discussion accompanying the award does not establish that he did not consider it. See Immigration and Naturalization Service and American Federation of Government Employees, AFL-CIO, 8 FLRA No. 53 (1982) at 2. The Agency similarly argues that the award is arbitrary because it was inherently illogical for the Arbitrator to deny the AWOL grievance while sustaining the reprimand grievance. However, the issues of the two grievances were different, and therefore the denial of the AWOL grievance has in no manner been shown to be inconsistent with sustaining the reprimand grievance. Accordingly, the exception is denied. Issued, Washington, D.C., June 13, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Union filed an opposition which was untimely and therefore has not been considered by the Authority.