12:0196(49)AR - IRS, Philadelphia Region and NTEU -- 1983 FLRAdec AR

[ v12 p196 ]
The decision of the Authority follows:

 12 FLRA No. 49
                                            Case No. O-AR-276
    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 tha