34:0745(129)AR - - AFGE Local 1857 and Sacramento Air Logistics Center, McClellan AFB - - 1990 FLRAdec AR - - v34 p745
[ v34 p745 ]
The decision of the Authority follows:
34 FLRA No. 129
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
SACRAMENTO AIR LOGISTICS CENTER
MCCLELLAN AIR FORCE BASE
February 9, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator John B. LaRocco filed by the American Federation of Government Employees, Local 1857 (the Union) 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 Sacramento Air Logistics Center, McClellan Air Force Base (the Activity) filed an opposition to the Union's exception.
The Activity suspended an employee for 1 day for insubordination. The employee grieved the suspension and the Arbitrator denied the grievance. The Union contends that the Arbitrator's award is deficient because it did not account for management's violation of Air Force regulations and the parties' master labor agreement (MLA) which the Union alleged precipitated the insubordination charge.
For the reasons discussed below, we deny the Union's exception.
II. Background and Arbitrator's Award
In November 1987, the Activity issued a notice of proposed reprimand charging the grievant with being absent without leave (AWOL) on October 23, 1987. The grievant was reprimanded on January 19, 1988.
In February 1988, the grievant received notice of a proposed 1-day suspension for being 100 minutes late on January 12, 1988. In determining the measure of discipline for the grievant's lateness, the supervisor took into consideration the previous AWOL offense in October 1987 for which the grievant was given a reprimand. On April 11, 1988, the grievant received the decision letter informing him of the suspension. Although the grievant was to serve the 1-day suspension on April 20, 1988, he "inadvertently failed to serve the suspension." Arbitrator's Award at 1.
The grievant's reprimand for the October AWOL offense was submitted to arbitration. On April 22, 1988, the Activity received the arbitrator's decision which expunged the reprimand from the grievant's record.
On May 12, 1988, the grievant's second-line supervisor called the grievant into his office to serve him with an amended decision letter rescheduling the 1-day suspension. The supervisor "clearly instructed [the g]rievant to return the amended decision letter to him" after reading it and "emphatically directed [the g]rievant to write nothing but his name on the letter" as an acknowledgment that he had received it. Arbitrator's Award at 2.
The grievant informed his supervisor that because the arbitrator's decision in the October AWOL matter had expunged the reprimand from his record, there was no justification for the suspension. The supervisor, who contended before the Arbitrator that he had no knowledge of that arbitration decision, refused to listen to the grievant's explanation. The supervisor also denied the grievant's requests to call the appropriate office to verify his statement and to allow him Union representation.
After the grievant began to "write a disclaimer" on the amended decision, the supervisor again requested that the grievant "refrain from writing any statement on the letter and that he return the letter to [him]." Id. at 2. The grievant refused this request and informed his supervisor that he would comply with his orders if the supervisor would put the orders in writing. When his supervisor failed to do so, the grievant retained the amended decision and the meeting ended.
The Activity suspended the grievant for 1 day because of his "insubordinate defiance of authority" at the May 12, 1988 meeting. Arbitrator's Award at 1. The grievant served the 1-day suspension for tardiness as scheduled. However, the suspension for tardiness was later reduced to a reprimand and the grievant was reimbursed for 1 day's pay. Arbitrator's Award at 2.
The grievant filed a grievance which was submitted to arbitration on the following stipulated issue: "[W]as the one-day suspension of Grievant for just cause, and, if not what should the remedy be." Id. at 1. The Arbitrator denied the grievance. The Arbitrator stated that "employees must 'comply now and grieve later' if they disagree with the supervisor's order or if they sincerely believe that the order violates applicable regulations or the Master Labor Agreement." Arbitrator's Award at 2. The Arbitrator determined that once the supervisor "elected to disregard [the g]rievant's efforts to solve the matter during the May 12, 1988 meeting, [the g]rievant was obligated to obey [his supervisor's] orders." Id. at 3. The Arbitrator concluded that whether the Activity "committed a harmful error or breached [the parties' MLA] are issues which would have been adjudicated if [the g]rievant had obeyed [his supervisor] and initiated a grievance." Id.
III. Positions of the Parties
A. Union's Exception
The Union contends that the Arbitrator's decision "did not account for management's violation of Air Force regulations and the MLA." Union's Exception at 1. The Union points out that Air Force Regulation 40-750, Section A.2.j. defines "harmful error" as: "An error by management in the application of its procedures which, if corrected or alleviated, might have resulted in a different conclusion." Union's Exception at 2 and Attachment 2. The Union notes that section 5.03(a) of the MLA provides: "Before proposing and/or effecting disciplinary action against an employee of the bargaining unit, management officials shall attempt to ascertain all pertinent facts both for and against the employee." Union's Exception at 2 and Attachment 3. The Union also notes that section 5.08(e) of the MLA provides that: "Disciplinary actions which are removed as a result of a grievance or arbitration decision shall be removed from the AF 971 and the employee's official personnel record within 10 work days in accordance with applicable regulations." Id.
The Union argues that the "alleged insubordination charge against the [grievant] was the direct result of management committing a 'Harmful Error.'" Union's Exception at 1. The Union contends that the Activity committed this harmful error by "fail[ing] to abide by the MLA, Section 5.03(a)" and by "fail[ing] to remove the disciplinary action within the allotted ten (10) work days[.]" Id. at 2. The Union asserts that "[i]f management had not committed this harmful error, the . . . actions taken by the employee in an effort to protect his rights, would not have occurred." Id. at 1. The Union contends that based on the facts in the case "it becomes clear management committed [a] harmful error and therefore the . . . disciplinary actions caused as [a] result of that error should be reversed." Id. at 5 (emphasis omitted). The Union states that "[d]ue to the fact that management's action was contrary to '. . . law, rule or regulation,' the Union is invoking Section 7122a(1) of the Civil Service Reform Act of 1978." Id. at 1.
B. Agency's Opposition
The Agency contends that the Authority does not have jurisdiction over the Union's exception. The Agency asserts that the Union has "attempted to modify the [grounds on which exceptions can be filed under the Statute] to permit review by the Authority in cases where it can be alleged that the employer has acted in such a way that its conduct . . . could be categorized as 'contrary to any law, rule or regulation.'" Agency's Opposition at 2. The Agency further contends that "even if the Authority finds a basis upon which to assert jurisdiction" over the Union's exception, "no grounds exist for modifying the Arbitrator's award." Id. at 4.
The Agency's argument concerning our jurisdiction over the Union's exception is without merit. Section 7122(a) of the Statute provides that either party to arbitration may file exceptions with the Authority to an arbitrator's award, other than an award relating to matters described in section 7121(f). The Union's exception does not concern a matter covered under section 7121(f) and is, therefore, properly before the Authority.
We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. The Union has failed to establish that the award is contrary to any law, rule, or regulation or that the award is deficient on any other ground similar to those applied by Federal courts in private sector labor relations cases.
The Arbitrator found that the grievant's refusal to follow a direct order from a supervisor constituted insubordination and that the 1-day suspension was warranted. The Arbitrator stated that pursuant to a "basic tenet of labor relations," if an employee believed that an order of the Agency violated applicable regulations or the MLA, the employee must first comply with the order and grieve it later. Arbitrator's Award at 3. He indicated that the circumstances of this case did not permit the grievant to resort to what is commonly referred to as "self-help" by "blatant[ly]" disobeying a direct order from a supervisor. Id.
In our view, the Union has failed to establish that the award is deficient. As we noted i