39:1103(93)AR - - Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia, Federal Metal Trades Council - - 1991 FLRAdec AR - - v39 p1103
[ v39 p1103 ]
The decision of the Authority follows:
39 FLRA No. 93
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE NAVY
NORFOLK NAVAL SHIPYARD
FEDERAL EMPLOYEES METAL TRADES COUNCIL
March 12, 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 Richard M. Upson. The award resolved two grievances. The first grievance concerned whether the grievant was improperly denied 4 hours of official time to conduct Union business on August 25, 1989. The Arbitrator found that the Agency's action violated the parties' agreement and, therefore, he granted this grievance. No exceptions were taken to this aspect of the Arbitrator's award and we will not address it further.
The second grievance concerned whether the grievant was improperly issued a letter of reprimand and denied 4 hours of pay because of his alleged unauthorized absence from work for 4 hours on August 30, 1989. The Arbitrator denied this grievance, finding that there was just cause for the Agency's action. The Union filed an exception to this part of the award 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 Agency did not file an opposition to the Union's exception.
We conclude that the Union has not established that the award is deficient under section 7122 of the Statute. Accordingly, we deny the Union's exception.
II. Background and Arbitrator's Award
The issue before the Arbitrator was whether the grievant was improperly issued a letter of reprimand by his general foreman on October 25, 1989 for "'disobedience to a constituted authority on August 30, 1989, first offense' and not paid for four (4) hours on August 30, 1989[.]" Award at 1.
On August 30, 1989, the grievant requested and was granted 4 hours of official time to conduct Union business. Sometime after noon of the same day, the grievant phoned his supervisor to request an additional 4 hours. The supervisor was on leave at that time. After the supervisor returned, she denied the grievant's request, directed him to return to work, and suggested that the grievant see the general foreman. Later on August 30, 1989, the general foreman directed the grievant's supervisor "to place [the grievant] on 'Z' leave (unauthorized leave-no pay/benefits)." Id. at 4.
"[A]fter appropriate pre-action investigation, discussions, etc.[, the general foreman] issued the October 25, 1989 Letter of Reprimand, the subject of the grievance." Id. The letter of reprimand stated that it was "issued as a penalty for [the grievant's] disobedience to a constituted authority on 30 August 1989, first offense." Exception, Joint Exhibit 2, Attachment dated October 25, 1989. The letter stated that the time that the grievant was away from work on the afternoon of August 30, 1989, "has been charged to absence without authority ["Z" leave]." Id.
The Arbitrator noted that "Article 31 [of the parties' agreement] requires that disciplinary action will be taken only for just cause." Id. at 7. The Arbitrator also noted that neither the parties' agreement nor the Agency's Instruction pertaining to "Disciplinary Actions," which he found was "covered under the provisions of Article 2 of the Labor Agreement," defined "just cause." Id.
Upon consideration of the evidence and the testimony of the witnesses, the Arbitrator concluded that the "appropriate actions required by Articles 31 and 33 of the parties' agreement were followed; i.e., pre-action investigation, Steps 2 and 3, timeliness." Id. at 3 and 7. In considering the Agency's pre-action investigation, the Arbitrator further determined that the "judge" of that investigation "obtain[ed] substantial evidence or proof that the employee was guilty as charged[.]" Id. at 8. Further, the Arbitrator stated that although he was concerned about the Agency's failure to indicate why informal disciplinary action was not considered in this case, he could not "convince [himself] to overturn the [Agency's] decision" to issue the letter of reprimand to the grievant for his unauthorized absence for 4 hours on August 30, 1989. Id. at 9. The Arbitrator "encourage[d] the [Agency] to review this case in light of [his] comments and consider the voluntary rescinding of the [l]etter of [r]eprimand, to be replaced by an [o]ral [a]dmonition." Id. As his award, the Arbitrator denied the grievance, noting his recommendation to the Agency.
The Union contends that the Arbitrator's award is in "direct violation" of Federal Personnel Manual (FPM) chapter 751, subchapter 1-3 b., Enforced Leave, which states:
b. Disciplinary situations. In a personal, disciplinary-type situation, the placing of an employee on leave without his consent constitutes a suspension. An agency must observe the appropriate procedures of part 752 when using enforced leave as a disciplinary action, as part of a disciplinary action, or as a prelude to a possible disciplinary action, such as pending investigation or inquiry.
(Emphasis supplied by the Union.)(*)
The Union contends that the grievant was placed on "Z" leave for 4 hours without the grievant's consent and prior to a pre-action investigation and that, therefore, the "letter of reprimand was issued in violation of FPM [chapter 751]." Exception at 1.
IV. Analysis and Conclusions
We conclude that the Union has failed to establish that the 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 other grounds similar to those applied by Federal courts in private sector labor relations cases.
The Union's contention that the grievant was improperly placed on "Z" leave and that the letter of reprimand was issued in violation of FPM chapter 751, subchapter 1-3 b. is premised on the assertion that "Z" leave constituted "enforced leave" under FPM chapter 751, subchapter 1-3 b. Under FPM, chapter 751, subchapter 1-3 a., enforced leave pertains to an employee's "involuntary absence [from work] imposed by an agency" because it believes the employee's "presence either constitutes an emergency or is otherwise highly undesirable[.]"
In this case, as noted above, an issue before the Arbitrator was whether the grievant was improperly issued a letter of reprimand as "a penalty for [his] disobedience to [his supervisor's direction to report back to work] on August 30, 1989." See Award at 1 and Exception, Joint Exhibit 2, Attachment dated October 25, 1989. The Arbitrator determined that the appropriate actions required by Articles 31 and 33 of the parties' agreement were followed. The Arbitrator also determined that the "judge" of the pre-action investigation obtained substantial evidence that the grievant failed to report back to work as directed by his supervisor. See Award at 8 and Exception, Joint Exhibit 2, Attachment dated August 31, 1989.
As the Arbitrator found that the record supported the conclusion that the grievant failed to return to work as directed by his supervisor, the Union's contention that the grievant was improperly placed on "Z" leave is not supported. We further find that the Union has not demonstrated that "Z" leave constitutes "enforced leave" as defined by FPM chapter 751, subchapter 1-3 a. The Union has not shown that the grievant's absence from duty was required by management because it believed the grievant's presence constituted an emergency or was highly undesirable. As noted above, the grievant was charged with "Z" leave, that is, "unauthorized leave-no pay/benefits," because of his unauthorized absence from work. Award at 4. Under "Z" leave, the employee receives no pay/benefits, while under enforced leave an agency is required to charge an employee's forced absence from duty to "appropriate conventional leave" and if the situation continues, prior to a determination to suspend or to remove, to continue the employee in a "pay status without charge to leave" for the appropriate time. See FPM Chapter 751, subchapter 1-3 a(1), (2) and (3). Noting the differences between "Z" leave and enforced leave as described above, we find that the Union has not established that "Z" leave constitutes enforced leave. Thus, based on the above, we find that the Arbitrator's award denying the grievance concerning the Agency's issuance of the letter of reprimand is not contrary to FPM chapter 751.
We conclude, therefore, that the Arbitrator's award denying the grievance is not deficient under section 7122(a) of the Statute. The Union's exception constitutes nothing more than disagreement with the Arbitrator's evaluation of the evidence and an attempt to relitigate the merits of this case before the Authority. Such disagreement provides no basis for finding the award deficient. See, for example, Social Security Administration and American Federation of Government Employees, Local 1923, 35 FLRA 160 (1990).
The Union's exception is denied.
FPM chapter 751, "Enforced Leave," subchapter 1-3 provides in relevant part:
a. Emergency situations. Emergency situations, involving the need to get the employee off the premises immediately, sometimes develop before any sort of disciplinary action has been initiated or decided upon. The latitude agencies have to cope with these nondisciplinary situations is described in 38 Comp. Gen. 203. This decision dealt with, first, the circumstances under which an agency may require an employee who is ready and willing to perform his duties to absent himself because the agency believes his presence either constitutes an emergency or is otherwise highly undesirable; and, second, what the employee's leave and pay status should be during any such period of involuntary absence imposed by the agency. In this decision the Comptroller General held that:
. . . .
(3) During investigations of employees for wrong-doing when it is in the interest of the Government to have the employee off the job preliminary to a determination to suspend or remove, it is not proper to place the employee in an enforced le