33:0177(19)AR - - Griffiss AFB and AFGE Local 2612 - - 1988 FLRAdec AR - - v33 p177
[ v33 p177 ]
The decision of the Authority follows:
33 FLRA No. 19
FEDERAL LABOR RELATIONS AUTHORITY
GRIFFISS AIR FORCE BASE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL UNION 2612
October 17, 1988
Before Chairman Calhoun and Member McKee.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Linda Robins Franklin. The Arbitrator found that "the Labor Management Agreement, and 5 USC 7114(a)(1) were not violated when Mr. Sallustio was given a one day suspension for defiance of authority and unauthorized absence." Award at 13. The Arbitrator denied the grievance.
The American Federation of Government Employees AFL-CIO Local Union 2612 (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 Griffiss Air Force Base (the Agency) did not file an opposition.
We conclude that the Union has not established that the Arbitrator's award is contrary to law, regulation, or the parties' negotiated agreement. Accordingly, we deny the Union's exceptions.
II. Background and Arbitrator's Award
On May 20, 1987, Mr. Sallustio, President of the Union, requested permission from his supervisor, Mr. Frasca, to leave the work area at 8:00 a.m. on the following day to prepare for contract negotiations. On May 21, 1987, Mr. Frasca informed Mr. Sallustio that his request for official time beginning at 8:00 a.m. was denied because official time for preparation for contract negotiations was not authorized.
When Mr. Frasca denied Mr. Sallustio's request for official time beginning at 8:00 a.m., he informed Mr. Sallustio that he would approve his leaving on official time at 10:30 a.m., the time Mr. Sallustio normally dealt with union business. Pursuant to prior agreement Mr. Sallustio was authorized official time to carry on his union responsibilities from 10:30 a.m. and the following 4 hours. Award at 8. Although Mr. Sallustio was denied permission to leave the work area at 8:00 a.m., he nevertheless departed the work area at 8:00 a.m. Mr. Frasca warned Mr. Sallustio that his leaving without permission would be reflected on his time card; a loud exchange of words occurred, Mr. Sallustio departed and did not return for the remainder of the day.
Mr. Sallustio's departure on May 21, 1987, resulted in the following: (1) Mr. Sallustio was charged with being absent without leave (AWOL) from 8:00 a.m. to 10:30 a.m.; (2) the 1 hour between 10:30 a.m. and 11:30 a.m. was charged against official, authorized time; and (3) the time between 12:00 p.m. and 3:00 p.m. was charged against annual leave. In addition, Mr. Sallustio was given a 1-day suspension for defiance of authority and unauthorized absence.
The Arbitrator found that the "matters as to whether the denial of official time was proper, and whether the absence of Mr. Sallustio was considered AWOL are not before this Arbitrator." Award at 9. She found that what "is before the Arbitrator is the issuance of a one day suspension for the defiance of authority and the unauthorized absence." Id.
The Arbitrator found that despite the fact that Mr. Sallustio's request to leave his duty station at 8:00 a.m. to prepare for contract negotiations had been denied "due to the fact that this was not an authorized reason for excused time away from work, Mr. Sallustio nevertheless chose to leave his work area at 8:00 a.m." Award at 8. She also noted that "Mr. Frasca had warned the Grievant that if he departed at 8:00 a.m. without authorization, he would have to record it on the time card, which time would be treated as AWOL." Id.
The Arbitrator further found that it "is clear from the testimony of Mr. Frasca, and indeed the Grievant himself, that he departed his work area at 8:00 a.m. without supervisory authorization." Award at 9. The Arbitrator found this conduct was contrary to Article 10, Section 3 of the Labor Management Agreement "which allows an 'officer or steward to leave his work area to represent an employee provided he requests permission from his immediate supervisor as much in advance as possible'" (underscoring supplied by Arbitrator). Id. The Arbitrator noted that when Mr. Sallustio's request for official time to prepare for contract negotiation was denied, he changed his purpose for the request for time off to filing a grievance and/or an unfair labor practice charge. The Arbitrator also noted that whether or not "he mentioned this to Mr. Frasca is not clear, but what is clear is that he was not authorized to leave." Award at 10. The Arbitrator found that "Mr. Sallustio's admission that he was leaving the base, and did not return for the rest of his tour is further evidence of his defiance of authority and the use of unauthorized time." Id.
The Arbitrator rejected Mr. Sallustio's argument that Mr. Frasca was not his supervisor and questioned "why Mr. Sallustio requested permission of Mr. Frasca on May 20 and 21 as he had done on many previous occasions." Award at 11. Further, the Arbitrator found that if the "latter has been vested with the authority by management, it is not Mr. Sallustio's responsibility to delve into Mr. Frasca's job description to determine if he is performing the factors therein, or if, indeed, he is authorized to perform functions beyond his description." Id.
The Arbitrator found that the appropriateness of the length of the suspension was governed by the regulations established by the Air Force for disciplinary and adverse action for civilian personnel. The Arbitrator found that the Agency viewed the actions of Mr. Sallustio as: (1) tardiness of one-half hour or more, leaving the job without permission, delayed return from lunch, unauthorized absence of 8 hours or less, for which the first offense is a reprimand to 5-day suspension; (2) failure to request leave according to established procedures, or failure to honor a valid denial of leave request, for which the first offense is a reprimand to 5-day suspension; and (3) insubordinate defiance of authority, refusal to comply with proper orders, wanton disregard of directives or insolence, for which the first offense is a reprimand to removal. The Arbitrator noted that since the charged offense was the first on Mr. Sallustio's record, the Agency decided that a 1-day suspension was appropriate. The Arbitrator also indicated that the combination of the three offenses could have led to a greater suspension.
The Arbitrator found that it "is clear from the portions of the Collective Bargaining Agreement, the Statutory material and the testimony that Mr. Sallustio read into these references, inferences and meanings which did not exist." Award at 12. In conclusion, the Arbitrator noted that "[n]othing has been presented in Mr. Sallustio's testimony, or his brief, which supports any claim that the disciplinary action was excessive or improper." Id. Accordingly, the Arbitrator found that "the Labor Management Agreement and 5 USC 7114(a)(1) were not violated when Mr. Sallustio was given a one day suspension for defiance of authority and unauthorized absence. " Award at 13. Therefore, she denied the grievance.
The Union filed two exceptions to the Arbitrator's award. In its first exception, the Union contends that the Arbitrator ruled on an issue not before her--the issue of whether the request for official time was reasonable. The Union argues that the Arbitrator ruled on the issue of official time when ruling on the question of "a one day suspension for defiance of authority and an unauthorized absence." Exceptions at 2. The Union contends that because the Arbitrator ruled on an issue not before her, the award should be overturned.
In its second exception, the Union contends that Mr. Sallustio was acting as the Union president when he was called into Mr. Frasca's office on May 21 and "Mr. Frasca's authority over Mr. Sallustio became limited at that point in time." Exceptions at 2. Thus, according to the Union, the Agency's could not take disciplinary action against Mr. Sallustio because he was engaging in representational duties.
IV. Analysis and Conclusion
The Union contends that the Arbitrator improperly ruled on whether or not the request for official time was reasonable and legitimate, an issue that was not before her.(*) The Arbitrator, however, indicated that the issue of official time was not before her and that she was not ruling on whether the denial of official time was proper. The Arbitrator stated that the issue before her was whether the imposition of the 1-day suspension by the Agency was proper. Award at 9.
In deciding the issue before her, the Arbitrator considered whether Mr. Sallustio departed from his work area at 8:00 a.m. on May 21, 1987, without supervisory authorization, contrary to the requirements of Article 10, Section 3 of the Labor Management Agreement. The Arbitrator found that the record indicated, and Mr. Sallustio himself admitted, that he departed his work area without supervisory authorization. Accordingly, the Arbitrator examined the Agency's guidelines for disciplinary and adverse action and found that the 1-day suspension was neither excessive nor improper.
Therefore, we conclude that the Union's first exception constitutes nothing more than disagreement with the Arbitrator's findings and conclusions, which does not provide a basis for setting aside an award. See, for example, Social Security Administration and American Federation of Government Employees, SSA General Committee, 30 FLRA 381 (1987) (exceptions which attempt to relitigate the merits of the case before the Authority and which constitute nothing more than disagreement with the arbitrator's reasoning, and conclusions provide no basis for finding the award deficient).
The Union also claims that the award violates applicable law because the award upheld disciplining a union representative who was engaging in representational activities in violation of his rights under section 7102 of the Statute. The Union argues that Mr. Sallustio was acting as the Union president when he entered Mr. Frasca's office and that Mr. Sallustio was disciplin