32:0513(75)AR - - Air Force, HQ, San Antonio Air Logistics Center, Kelly AFB and AFGE Local 1617 - - 1988 FLRAdec AR - - v32 p513
[ v32 p513 ]
The decision of the Authority follows:
32 FLRA No. 75
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS, SAN ANTONIO
AIR LOGISTICS CENTER
KELLY AIR FORCE BASE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL NO. 1617
Case No. 0-AR-1466
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Russell C. Neas. The Arbitrator found that the Activity did not have just cause to suspend the grievant for 3 days. However, the Arbitrator concluded that the Activity had just cause to reprimand the grievant for being absent without leave (AWOL). He also concluded that the grievant should (1) be reprimanded for failing to exercise proper control of his tools and destroying a quality control form, and (2) forfeit all backpay.
The Union filed exceptions 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 Activity did not file an opposition.
We conclude that the Union has failed to establish that the award is contrary to law, regulation, or the parties' collective bargaining agreement. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The grievant was suspended for 3 days for being AWOL and for violations of the tool control program.
The grievant had been charged with being AWOL on April 24, 1987, when he failed to report to work despite the fact that his scheduled leave for that day had been cancelled. The grievant was charged with tool control program violations on April 23 and May 12, 1987. On these days, the grievant was issued a Form 459 (Quality Data Input Record) stating that he had left his tools unattended in violation of directives. The grievant was also charged with acting improperly on April 23 by deliberately destroying the Form 459 that he had been issued.
The grievant filed a grievance over the suspension which was submitted to arbitration. The stipulated issue was whether the Activity had just cause for suspending the grievant for 3 days.
The Arbitrator ruled that the Activity did not have just cause to suspend the grievant for 3 days. However, he concluded that the Activity had just cause to reprimand the grievant for being AWOL. The Arbitrator also concluded that the Activity had just cause to discipline the grievant for the tool control program violations.
Although the Arbitrator found that the issuance of a reprimand for the violations of the tool control program would be too severe, he found that the grievant's intentional destruction of the Form 459 was a serious breach of acceptable behavior and compounded the tool control program violations. Citing his authority under the parties' collective bargaining agreement, the Arbitrator concluded that the grievant should be reprimanded for failing to exercise proper control of his tools and destroying a Form 459 and that as a further penalty, he should forfeit the award of 3 days of backpay for the vacated suspension.
III. First Exception
The Union contends that by directing that the grievant receive two letters of reprimand, the award is contrary to "Air Force Regulations, Federal Law, the Federal Regulations, and the negotiated Master Labor Agreement." Exceptions at 1. The Union maintains that the Activity charged the grievant with being AWOL and with tool control program violations and took a single disciplinary action for the combined offenses. The Union argues that the award is deficient because it directs the issuance of more than one reprimand for the single disciplinary action that was taken.
B. Analysis and Conclusions
We conclude that the Union's first exception fails to establish that the Arbitrator's award is contrary to any law, regulation, or the collective bargaining agreement.
The Union has failed to specify any provision of law, regulation, or the collective bargaining agreement which precluded the Arbitrator from vacating the suspension and directing that the grievant be reprimanded for the separate charges. This exception constitutes nothing more than disagreement with the Arbitrator's findings and conclusions on the appropriateness of the penalty and provides no basis for finding the award deficient. See, for example, National Treasury Employees Union and U.S. Customs Service, Northeast Region, 28 FLRA 280 (1987) (an arbitrator properly may determine that all or part of a disciplinary penalty was not for just cause and may set aside or reduce the penalty).
IV. Second Exception
The Union contends that because the Arbitrator found that there was no just cause to suspend the grievant, the award is contrary to law and regulation by requiring the grievant to forfeit 3 days of backpay.
B. Analysis and Conclusions
We conclude that the Union's second exception fails to establish that the Arbitrator's award is contrary to law or regulation.
In AFGE Local 2718 v. Department of Justice, 768 F.2d 348, 351 (Fed. Cir. 1985), the court reviewed the Back Pay Act, 5 U.S.C. º 5596, and its legislative history and found no provision which precludes an arbitrator from denying backpay as part of a decision to mitigate the penalty imposed by the agency. The court found that adoption of such a limitation would impair the broad discretion of arbitrators in fashioning a just award which takes account of the parties' mutual conduct. Id.
In this case, the Arbitrator found that the evidence indicated that the grievant was guilty of being AWOL. Award at 11. The Arbitrator also found that the grievant admitted leaving his tools unattended on two occasions and that he intentionally destroyed a quality control form. Award at 18-19. The Arbitrator then determined that the penalty imposed by the Agency for these offenses was too severe. Accordingly, the Arbitrator mitigated the penalty from a 3-day suspension to a penalty which included two letters of reprimand and the forfeiture of 3 days of backpay as part of the mitigated penalty. In view of the decision of the court in AFGE Local 2718, the Union's exception provides no basis for finding deficient the Arbitrator's determination that the grievant should forfeit all backpay.
The Union exceptions are denied.
Issued, Washington, D.C.,
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
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