39:0430(33)AR - - HHS, SSA and AFGE Local 1923 - - 1991 FLRAdec AR - - v39 p430



[ v39 p430 ]
39:0430(33)AR
The decision of the Authority follows:


39 FLRA No. 33

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1923

(Union)

0-AR-1947

DECISION

February 8, 1991

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 Charles Feigenbaum filed by the Union pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exception.

The Agency charged an employee with 48 hours of absence without leave (AWOL). A grievance was filed which sought to have the 48 hours of AWOL changed to administrative leave. The Arbitrator granted the grievance, in part, and denied it, in part, by reducing the AWOL charge to 32 hours.

For the following reasons, we conclude that the Union's exception provides no basis for finding the award deficient. Accordingly, we will deny the Union's exception.

II. Background

The grievant, a GS-13 Computer Systems Programmer who is visually handicapped, was routinely driven to work and dropped off at about 6:00 a.m. at the bus loop entrance of the West Low Rise Building located at Agency's headquarters complex. The headquarters complex is a large facility composed of several interconnected buildings. The grievant's work station was located in the National Computer Center, outside of the Agency's headquarters complex.

On April 12, 1989, the Deputy Office Director of the Agency's Office of Computer Processing Operations advised the grievant that, for reasons unrelated to the instant proceeding, the grievant was being placed on administrative leave until further notice. The grievant was required to relinquish his building pass, and the Deputy Office Director informed the grievant that he would contact him later.

On Wednesday, April 19, 1989, the Deputy Office Director advised the grievant by telephone that the grievant was being detailed to a new work location and should report to the Altmayer Building entrance at 8:00 a.m. on Friday. The Deputy Office Director stated that he would make arrangements with the security guard so that the grievant would be given access to the building. At the grievant's request, the Deputy Office Director agreed that the grievant could report and gain access at the bus loop entrance of the West Low Rise Building.

On Friday, April 21, 1989, the grievant reported to the bus loop entrance of the West Low Rise Building at about 6:00 a.m. After the guard informed the grievant that she did not have authorization for the grievant to enter the building, the grievant requested that his arrival time be documented. The guard complied with his request. The grievant informed the guard that he would return at 7:30 a.m.

The grievant then checked at the Altmayer Building entrance to see if a pass for him to enter the building had been left there. The guard at the entrance informed him that he did not have a pass, but that he did have an April 12, 1989, memorandum from the Chief of the Protective Security Branch regarding the grievant. The memorandum stated the following:

Entry to the Main Complex buildings will not be granted to the [grievant].

[The grievant] is an employee who has been placed on administrative leave through April 28, 1989. Therefore, access is to be denied until that date. If the [grievant] demands access or is discovered in the complex, please contact the Protective Security Branch for further instruction.

Exception, Attachment 2. See Award at 6.

Thereafter, the grievant left the Agency's premises and did not return until Monday, May 1, 1989. Before leaving the Agency's premises on April 21, 1989, the grievant contacted the Commissioner's Office and left a message that he "had attempted to report to work at the beginning of his 'flex band' and had been denied access to the workplace." Id. at 7. The grievant did not speak with anyone from the Agency regarding the situation again until April 28. The grievant was charged with 48 hours' AWOL as a result of his absences on April 21, 1989, and April 24-28, 1989.

The Union grieved the charge of AWOL. The grievance was unresolved and was submitted to arbitration.

III. Arbitrator's Award

The Arbitrator stated the issue before him as follows: "Was the charge of 48 hours of AWOL given the [g]rievant justified?" Id. at 2.

Before the Arbitrator, the Agency contended that it had made arrangements with the guard at the West Low Rise Building's bus loop entrance to contact certain Agency personnel upon the grievant's arrival on April 21, so that the grievant could be escorted to his new workplace. The Deputy Office Director claimed that when no one had heard from the grievant by 8:15 a.m., an inquiry was made of the guard. The Agency was informed by the guard that the grievant had arrived, but had left, stating that he would return at 7:30 a.m. The guard had indicated that neither she nor the grievant made any calls regarding his gaining access to the building.

Further, the Agency contended that it had attempted to contact the grievant by telephone to ascertain what had happened. The Deputy Office Director stated that he left messages on the grievant's answering machine at 4:30 p.m. on April 21 instructing the grievant to report to work on Monday morning, April 24, and again on April 25 requesting the grievant to contact him. The Agency stated that the grievant did not respond until April 28. The Agency also stated that a written reprimand had been mailed to the grievant informing him of the 8 hours' AWOL charged to him on April 21.

The grievant claimed before the Arbitrator that he was uncertain whether the person who contacted him on April 19, 1989, was in fact, the Deputy Office Director, because he had seldom spoken to the Deputy Office Director. The grievant asserted that after he had been informed by the armed guard at the Altmayer Building entrance that he was not to be allowed access until after April 28, he did not return to the bus loop entrance of the West Low Rise Building at 7:30 a.m. because "he was frightened." Id. at 7.

The grievant claimed that he did not receive a message on April 21, 1989, from the Deputy Office Director instructing him to report to work on April 24. The grievant testified that there was a message left on April 25, but that he was not aware of the message until April 28 because "he had not checked his machine until then." Id. The grievant asserted that he had contacted the Agency on April 28 because "he intended to report to work on May 1, when the time stated in the memorandum would have expired." Id. at 8. The grievant testified that "[h]e made no effort to call anyone from April 24 until the morning of April 28, because he saw no need to do so." Id. The grievant stated that he felt he had "taken proper action" by contacting the Commissioner because his being barred from the headquarters complex was a security matter. Id.

The Arbitrator first considered the AWOL charge for Friday, April 21, 1989. The Arbitrator found that it was "reasonable" for the grievant to check at the Altmayer Building entrance to see if a building pass had been left for him there. Id. at 9. Although the Arbitrator indicated that it would have been better if the grievant had returned to the bus loop entrance at 7:30 a.m. to "see if matters could be straightened out[,]" he found it "understandable" that the grievant had "acted as he did [the] morning [of April 21]." Id. at 9, 10. Giving the grievant "the benefit of the doubt," the Arbitrator assumed that the grievant remained "stress[ed] and bewilder[ed]" by the events of April 21 for the remainder of the day. Id. Consequently, he found that the grievant's failure to contact the Deputy Office Director, his prior supervisor, or Agency management "closer to the situation than the Commissioner" was explainable. Id. at 10. Accordingly, the Arbitrator found that the charge of 8 hours AWOL for April 21 was "inappropriate." Id. at 11.

The Arbitrator next considered the 40 hours of AWOL charged for April 24-28, 1989. The Arbitrator stated that the April 12, 1989, memorandum created "a mixup about when [the grievant] was expected back at work[.]" Id. The Arbitrator stated that "it was [the grievant's] responsibility to take steps to try to resolve the matter." Id.

The Arbitrator found "no adequate justification whatever for the [g]rievant's failure to call the Agency on Monday[, April 24]." Id. The Arbitrator ruled that by April 24 the grievant had "ample time for calm reflection."

Addressing the grievant's concern that it may not have been the Deputy Office Director who contacted him regarding his return to work, the Arbitrator reasoned that the grievant could have allayed his concerns by contacting the Deputy Office Director. The Arbitrator stated that the grievant "is a highly intelligent person who holds a responsible position at grade GS-13." Id. Accordingly, he found that the grievant "should have known that going through the Commissioner was an unduly circuitous route for attempting to resolve his problem." Id. The Arbitrator concluded that the grievant "knew, or should have known" that he should have contacted the Deputy Office Director or someone close to the Deputy Office Director. Id.

The Arbitrator found, therefore, that the 32 hours of AWOL charged to the grievant for the period of April 25-28, 1989 was justified. The Arbitrator ruled, however, that the 8 hours of AWOL charged the grievant on April 24 was "inappropriate" because, "even if the [g]rievant had called in on April 24, it would have been too late for him to get to work that day, given his handicap and his travel arrangements." Id. Accordingly, as his award, the Arbitrator reduced the AWOL charge from 48 hours to 32 hours.

IV. Union's Exception

The Union contends that the Arbitrator's award is based on a nonfact. The Union claims that the Arbitrator "erroneously evaluated the evidence" and argues that "[t]here is no basis in the record for the Arbitrator's assertion that the grievant was under an obligation to contact the Administration to see whether his administrative suspension was to end prior to the scheduled ending date of April 28, 1989." Exception at 5, 6.

The Union asserts that "[i]n effect, the Arbitrator placed management's burden of monitoring the grievant's administrative suspension on the grievant. Clearly, such a management function can not fall on the aggrieved employee." Id. at 6. The Union concludes that "[w]ithout consideration of the non-fact, the Arbitrator's sole choice would be to dismiss the entire AWOL charge of 48 hours." Id. Accordingly, the Union contends that the Authority should uphold its exception and "direct that the grievant be made whole." Id.

V. Agency's Opposition

The Agency contends the Arbitrator's award is not deficient. The Agency argues that the Union's exception attempts to relitigate the merits of the case before the Authority. The Agency asserts that "the [April 12, 1989,] memorandum cannot be considered to be a central fact [underlying the award] and it certainly is not justification for the grievant's failure to comply with his responsibilities." Opposition at 9. Accordingly, the Agency requests the Authority to uphold the Arbitrator's award.

VI. Analysis and Conclusions

We will find an award deficient under the Statute because it is based on a nonfact if the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of Defense Dependents Schools, Mediterranean Region and Overseas Federation of Teachers, 36 FLRA 861, 867 (1990). The Union has failed to establish that the award in this case is based on a nonfact.

The Union asserts that there is no evidence to support the Arbitrator's conclusion that the grievant "was under an obligation to contact the [Agency] to see whether his administrative suspension was to end prior to . . . April 28, 1989." Exception at 6. However, the Union has provided no basis on which to find that the Arbitrator's conclusion is based on a central fact which is clearly erroneous. In particular, the Arbitrator's conclusion that it was the grievant's "responsibility to take steps to try and resolve the matter[,]" is not, in our view, a fact. Instead, that conclusion reflects the Arbitrator's reasoning and conclusion as to the appropriate steps that should have been taken by the grievant to "resolve his problem." See Award at 11. As the Arbitrator's conclusion does not constitute a fact, we conclude that the Union has not demonstrated that the Arbitrator's award is deficient because it is based on a nonfact. See U.S. Department of Health and Human Services, Social Security Administration, San Francisco Region and American Federation of Government Employees, Council 147, 38 FLRA No. 94, slip op. at 5 (1991).

Moreover, the Union's contention that the Arbitrator "erroneously evaluated the evidence" does not provide a basis for finding the award deficient. See Exceptions at 5. The Union's contention constitutes nothing more than disagreement with the Arbitrator's evaluation of the evid