35:0553(63)AR - - VA Medical Center, Birmingham, AL and AFGE Local 2207 - - 1990 FLRAdec AR - - v35 p553



[ v35 p553 ]
35:0553(63)AR
The decision of the Authority follows:


35 FLRA No. 63

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

VETERANS ADMINISTRATION MEDICAL CENTER

BIRMINGHAM, ALABAMA

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2207

(Union)

0-AR-1703

DECISION

April 16, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Jack Clarke. The Arbitrator denied the grievance over the 14-day suspension of the grievant.

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 Department of Veterans Affairs (the Agency) filed an opposition to the Union's exceptions on behalf of the Activity.(1)

For the reasons stated below, we conclude that the Union has failed to establish that the Arbitrator's award is deficient, and we will deny the Union's exceptions.

II. Background and the Arbitrator's Award

The grievant, the local union vice president, occupied the position of Medical Technologist and was assigned to the Activity's Blood Bank at the time of the incidents that led to his suspension. He was suspended for 14 days for violating VA Regulation 820(A)(1) by being absent without leave (AWOL) from 3:35 to 4:00 p.m. on November 25, 1987, and violating VA Regulation 820(B) by engaging in insubordinate behavior toward his supervisor and unreasonable delay in carrying out instructions on November 30, 1987. The decision letter suspending the grievant stated that the grievant's past record of having been reprimanded on October 23, 1987, for insubordination was taken into account in determining the appropriate penalty.

With regard to the alleged violation of VA Regulation 820(A)(1), the Arbitrator found that on November 25, 1987, the grievant requested 2 hours of official time and left the office at 1:35 p.m. according to the entry made in the Official Time Log and the testimony of the grievant's supervisor. The grievant did not return to work after the expiration of the 2 hours of official time at 3:35 p.m., thus leading to the charge that he had been AWOL from 3:35 to 4:00 p.m., the end of his shift. Arbitrator's Award at 3. With regard to the alleged violation of VA Regulation 820(B), the Arbitrator found that on the afternoon of November 30, 1987, the Blood Bank received an emergency request for uncross-matched blood for a patient. When informed of this emergency request by his supervisor and told to cease his telephone conversation, which involved Union business, and to proceed with the work procedures for uncross-matched blood processing, the grievant continued his telephone conversation for at least another 2 minutes. The patient died on December 6, 1987. Id. at 20.

The grievant filed a grievance challenging the suspension. The grievance was not resolved and was submitted to arbitration where the parties agreed to permit the Arbitrator to "frame the issues to be resolved." Id. at 2.

The Arbitrator first addressed the threshold issue of whether the parties' agreement required that the grievance be granted without arbitration. The Union claimed that: (1) the grievant's supervisor failed to informally discuss the grievance with the grievant prior to the issuance of a written answer in violation of article XXXVI, section 7, step 1 of the agreement;(2) and (2) in accordance with article XXXVI, section 14(b) of the agreement,3/ the grievance must be deemed to have been granted at step 1.

The Arbitrator rejected the Union's claim. He found that article XXXVI, section 7, step 1 does not place an obligation on the Activity or the supervisor to initiate an informal discussion at step 1. The Arbitrator also found that article XXXVI, section 14(b) relates solely to situations where the Activity fails to meet a specified time limit. Therefore, the Arbitrator ruled that even if the agreement requires that the Activity informally discuss a grievance at step 1, the agreement does not specify a time limit for that discussion. The Arbitrator also ruled that in view of the grievant having demanded in his grievance that his supervisor reply in writing, the grievant could not complain of a failure to discuss the grievance informally. For all these reasons, the Arbitrator determined that article XXXVI, section 14(b) was not applicable and the grievance was arbitrable. Id. at 27.

On the merits of the grievance, the Arbitrator stated the issue to be "whether the 14-calendar day suspension awarded the Grievant by letter dated January 5, 1988 was for just and sufficient cause and for such cause as will promote the efficiency of the Federal service and, if not, what shall the remedy be." Id. at 25. The Arbitrator concluded that the Activity had satisfied the burden of proving that the suspension was imposed for such cause. Id. at 28.

On the first charge against the grievant, the Arbitrator determined that the Activity had satisfied its burden of proving that the grievant was absent from his work station from 1:35 p.m. until 4:00 p.m. and that the grievant was AWOL for at least 10 minutes during that time. On the second charge, the Arbitrator determined that the grievant's conduct during the afternoon of November 30, 1987, constituted insubordination and unreasonable delay in carrying out instructions, in violation of VA Regulation 820(b).

The Arbitrator also determined that the Activity properly considered a previous reprimand received by the grievant on October 23, 1987, in determining the appropriate penalty. He found, contrary to the claim of the Union, that a settlement agreement had removed only the AWOL charge referred to in the October 23 reprimand and not the insubordination charge also involved in that reprimand. Reviewing the 14-day suspension in light of all relevant considerations, the Arbitrator concluded that the penalty promoted the efficiency of the Federal service. Id. at 43.

The Arbitrator also rejected the Union's claim that the Activity's actions were motivated by anti-union animus. He found that the Union's claim was not supported by the evidence presented.

Accordingly, the Arbitrator denied the grievance.

III. First Exception

A. Positions of the Parties

The Union contends that "[t]he ruling by the arbitrator that the grievant must request a meeting, or that a meeting is optional, when a written grievance is submitted, is a capricious and arbitrary ruling the basis for which is not found in the contract, or a non-fact." Union's Exceptions at 20-21.

The Agency argues that the Union's exception provides no basis for finding the award deficient because the exception constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the collective bargaining agreement.

B. Analysis and Conclusion

The Union fails to establish that the award is deficient because it does not draw its essence from the agreement and is based on a "non-fact." As previously noted, the Arbitrator determined that article XXXVI, section 14(b), which provides for the granting of the remedy most recently requested in the grievance, is not applicable based on the facts of this case and the Arbitrator's interpretation of the parties' contract provisions. Therefore, the Union's contentions constitute nothing more than disagreement with the Arbitrator's ruling on the procedural arbitrability issue of whether the grievance should be deemed to have been granted at step 1 under article XXXVI, section 14(b) of the parties' collective bargaining agreement. American Federation of Government Employees, Local 1915 and Wm. Jennings Bryan Dorn Veterans Hospital, Columbia, S.C., 32 FLRA 1223 (1988) (denial of exceptions which merely disagree with an arbitrator's determination on a procedural arbitrability question is consistent with the decisions of Federal courts in private sector labor relations cases).

IV. Second Exception

A. Positions of the Parties

The Union contends that the Arbitrator exceeded his authority. The Union argues that the Arbitrator "rendered decisions on matters which had not been submitted to him." Union's Exceptions at 5.

The Agency argues that the Union's exception provides no basis for finding the award deficient because, by stipulation of the parties, the Arbitrator determined the issue to be decided and his award was directly responsive to the stated and undisputed issue.

B. Analysis and Conclusion

We conclude that the Union fails to establish that the Arbitrator exceeded his authority.

An arbitrator's award will be found deficient as in excess of the arbitrator's authority when the arbitrator resolves an issue not submitted to arbitration. Air Force Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, AFL-CIO, Local 2429, 24 FLRA 516, 518 (1986). However, when the parties cannot agree on a statement of the issue, arbitrators do not exceed their authority when they formulate and decide the issues to be resolved. Id. at 518-19. See also American Federation of Government Employees, Local 3954 and Federal Bureau of Prisons, Federal Correctional Institution, Phoenix, Arizona, 32 FLRA 782 (1988).

In this case, the parties agreed that the Arbitrator would frame the issues to be resolved. Arbitrator's Award at 2. On the merits, the Arbitrator stated the issue to be "whether the 14-calender day suspension awarded the Grievant by letter dated January 5, 1988 was for just and sufficient cause and for such cause as will promote the efficiency of the Federal service and, if not, what shall the remedy be." Id. at 25. We find that the award is directly responsive, and properly confined, to the issue as the Arbitrator framed it.

V. Third Exception

A. Positions of the Parties

The Union contends that the Arbitrator "improperly relied upon" a decision of an administrative judge of the Merit Systems Protection Board (MSPB) sustaining the grievant's removal from the Federal service. Union's Exceptions at 32. Relying in part on the 14-day suspension at issue herein, the Activity later removed the grievant. Because the removal was adjudicated before the arbitration hearing was held in this case, the administrative judge in the MSPB case was required to determine whether the suspension at issue in this case was clearly erroneous; the administrative judge determined that it was not. The Union argues that this determination by the MSPB administrative judge "was based on non-facts" and that the Arbitrator used this determination as a "primary part of his rubber-stamp justification for a like ruling." Id. at 36.

The Agency contends that the Arbitrator did not rely on the MSPB decision. The Agency maintains that the Arbitrator simply noted that there was a proceeding before the MSPB involving the grievant that resulted in a decision by an administrative judge. The Agency asserts that the Arbitrator did not consider the MSPB decision in denying the grievance.

B. Analysis and Conclusion

The Union's exception provides no basis for finding the award deficient. We find that the Arbitrator did not rely on the MSPB decision. The only reference to the MSPB decision in the Arbitrator's opinion and award is as part of the Arbitrator's statement of the background under the heading "Evidence About Other Facts" in which he notes the grievant's removal and subsequent MSPB action. There is no indication that the Arbitrator relied upon these "other facts" in any manner. Indeed, the Arbitrator, in a lengthy opinion and award, fully set forth the facts upon which he relied in reaching his decision.

VI. Fourth Exception

A. Positions of the Parties

The Union asserts that the award is deficient because the imposed penalty of a 14-day suspension was "improper, excessive, and arbitrary, capricious or unreasonable." Union's Exceptions at 32.

The Agency contends that the Arbitrator reviewed all relevant considerations in the Activity's determination of the penalty and concluded that the penalty promoted the efficiency of the service. The Agency maintains that the Union's exception constitutes nothing more than disagreement with the Arbitrator's findings of fact and reasoning and conclusions and provides no basis for finding the award deficient.

B. Analysis and Conclusion

We conclude that the Arbitrator's upholding of the penalty of a 14-day suspension does not render the award deficient. The Arbitrator reviewed the appropriateness of the penalty of a 14-day suspension in view of all relevant considerations. The Arbitrator found that the Activity properly considered the grievant's reprimand on October 23, 1987, in determining the appropriate penalty. He noted that the grievant's insubordination on November 30, 1987, was very serious and that the grievant had been warned about insubordination shortly before November 30. He also noted that a 14-day suspension was within the range of penalties set out in the Agency's table of penalties. The Arbitrator, therefore, concluded that the penalty of a 14-day suspension was not excessive and promoted the efficiency of the service. The Union in its exception fails to establish otherwise. Therefore, we find that the exception provides no basis for finding the award deficient. See U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 34 FLRA 315, 319 (1990) (denial of exception which asserted suspension was not for just cause is nothing more than disagreement with the arbitrator's evaluation of the evidence and his reasoning and conclusions and is an attempt to relitigate the case before the Authority).

VII. Fifth Exception

A. Positions of the Parties

The Union argues that the award is deficient because the Arbitrator erred in failing to find that: (1) the grievant was engaged in protected activities at the time of the insubordination incident on November 30, 1987; (2) the disciplinary action was a reprisal for his protected activities; and (3) in imposing the penalty, the grievant was treated disparately due to his Union activities.

The Agency contends that the Union's claims concerning protected activity amount to disagreement with the Arbitrator's findings of fact and reasoning and conclusions and provide no basis for finding the award deficient.

B. Analysis and Conclusions

We are not persuaded that the award is deficient because the grievant was engaged in protected activities on November 30, 1987, or because the Activity's action was discriminatory or in reprisal for past protected activity.

Although section 7102 of the Statute guarantees employees the right to engage in activities on behalf of an exclusive representative without fear of penalty or reprisal, an employee's involvement in union activities does not immunize the employee from discipline. Veterans Administration Medical Center and American Federation of Government Employees, Local 2207, 32 FLRA 777, 780-81 (1988). Management's right to take disciplinary action under section 7106(a)(2)(A) of the Statute includes the right to discipline a union representative for activities which "are not specifically on behalf of the exclusive representative or which exceed the boundaries of protected activity such as flagrant misconduct." U.S. Air Force Logistics Command, Tinker Air Force Base, Oklahoma City, Oklahoma and American Federation of Government Employees, Local 916, AFL-CIO, 34 FLRA 385, 388-89 (1990) (Tinker Air Force Base), quoting Long Beach Naval Shipyard, Long Beach, California and Long Beach Naval Station, Long Beach, California, 25 FLRA 1002, 1005 (1987).

In the circumstances of this case, the Arbitrator found that the Activity could discipline the grievant for his conduct on November 30, 1987 because in that "life threatening situation", for the grievant to remain "on a telephone to discuss Union business" after being ordered to work on an emergency case was not "tolerable." Arbitrator's Award at 38-39. We agree. There is nothing in the Statute that permits an employee faced with such an emergency to delay obeying his supervisor's order in order to discuss Union business. Accordingly, the Statute did not preclude the discipline of the grievant for unreasonable delay in carrying out instructions and for insubordination. See Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri and American Federation of Government Employees (AFL-CIO), Local No. 3399, 14 FLRA 103 (1984) (the Statute does not protect an employee from being found insubordinate for refusing to return to work until such time as the employee determines that union activities are complete).

The case before us is readily distinguishable from Tinker Air Force Base. In that case the award was found deficient because the grievant's actions of attempting to personally serve copies of unfair labor practice charges filed by the union on activity supervisors who were named in the charges were not of such an outrageous and insubordinate nature so as to remove him from the realm of protected activities under section 7102 of the Statute. In contrast, in the present case the grievant's conduct of remaining on the telephone to discuss Union business while a life-threatening situation urgently needed his attention was insubordinate and unprotected.

We also do not conclude that the Activity's actions were motivated by consideration of the grievant's past union activities. The Arbitrator specifically found that the Union's claim that the Activity's "actions were motivated by anti-Union animus was not supported by the evidence." Arbitrator's Award at 30. The Union fails to establish otherwise. The Union's contentions of reprisal and disparate treatment constitute nothing more than disagreement with the Arbitrator's evaluation of the evidence and testimony on the issue of union animus. The contentions provide no basis for finding the award deficient. See Department of the Army, Fort Carson, Colorado and American Federation of Government Employees, Local 1345, 32 FLRA 1243, 1248 (1988) (an exception contending that management's action was a reprisal for protected activity was denied based on the arbitrator's finding that the contention was not supported by the evidence); Carswell Air Force Base and American Federation of Government Employees, Local 1364, 32 FLRA 789, 790-91 (1988) (union's contention that the arbitrator erred in not finding union animus constituted nothing more than disagreement with the arbitrator's evaluation of the evidence and testimony on that issue and provided no basis for finding the award deficient).

To the extent that the Union may be asserting that the section of the award pertaining to the November 25, 1987 AWOL charge is deficient because the grievant was engaged in protected activities on that date, we do not agree with the assertion. The Arbitrator credited the testimony of the grievant's supervisor that at 1:35 p.m. she granted the grievant 2 hours of official time. The Arbitrator found that the grievant was absent from his work station from 1:35 p.m. until 4:00 p.m. and was AWOL for at least 10 minutes during that time. Therefore, we find that the Union's contention that the grievant was disciplined for conduct while on official time constitutes nothing more than disagreement with the Arbitrator's findings of fact and provides no basis for finding the award deficient. See Griffiss Air Force Base and American Federation of Government Employees, AFL-CIO, Local Union 2612, 33 FLRA 177 (1988) (an exception contending that the award upheld the discipline of a union official for conduct while engaged in representational activities was denied because it constituted nothing more than disagreement with the arbitrator's findings of fact).

VIII. Summary

The Union's exceptions fail to establish that the award is deficient, and we will, therefore, deny the exceptions.

IX. Decision

The Union's exceptions are denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Authority notes that during the pendency of this case the Veterans Administration was reestablished as the Department of Veterans Affairs.

2. Article XXXVI, Section 7, Step 1 provides in relevant part that "[t]he grievance will be discussed informally with the supervisor."

3. </