43:0939(74)AR - - Justice, INS and National Border Patrol Council, AFGE - - 1992 FLRAdec AR - - v43 p939



[ v43 p939 ]
43:0939(74)AR
The decision of the Authority follows:


43 FLRA No. 74

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

(Agency)

and

NATIONAL BORDER PATROL COUNCIL

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

(Union)

0-AR-1942

DECISION

January 9, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on exceptions to an award of Arbitrator Charles A. Askin filed by the Agency 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 Union filed an opposition to the Agency's exceptions.

Two separate grievances were filed concerning a 5-day and a 10-day suspension of the grievant for alleged insubordination regarding the submission of official time reports. The Arbitrator sustained the grievances, finding that both suspensions were not for just cause.

For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background

The grievant is employed as a Border Patrol Agent at the Agency's Calexico Station. The grievant reports to a first-line supervisor who, in turn, reports to Elwood Bryant, the Patrol Agent in Charge at Calexico. Bryant reports to Dale Musegades, the Chief Patrol Agent at the El Centro Headquarters.

In February, 1989, the grievant was elected as the Union's national vice-president. Under Article 7B of the parties' collective bargaining agreement, regional vice-presidents, including the national vice-president, are authorized 20 percent official time for representational duties. Additionally, Article 7E of the agreement requires various Union officials to record their use of official time. This requirement is further explained in a Memorandum of Understanding (MOU), negotiated subsequent to the collective bargaining agreement.(1)

A. 5-Day Suspension

On February 19, 1989, the grievant informed the Chief Patrol Agent of his election as vice-president. Chief Patrol Agent Musegades thereafter notified the grievant that he would be expected to complete the "7E form" and send it to the Chief through the chain of command, beginning with the first-line supervisor. No deadline was set for the grievant's submission of reports.

During March, 1989, the grievant's first-line supervisor asked the grievant if he had submitted his official time reports. The grievant stated that he had not done so. The supervisor informed the grievant that the reports were due at the end of each pay period and that the grievant was required to give the reports to him. The grievant disagreed and stated that he was required to submit the reports directly to Musegades. Thereafter, on March 22, Musegades met with the grievant and directed him to submit the reports to Musegades through the grievant's first-line supervisor. Once again, no deadline was given for the submission of the reports.

During the morning of March 28, Bryant notified Musegades that the grievant had not yet submitted his official time reports. Musegades directed Bryant to have the grievant's first-line supervisor instruct the grievant to submit the 7E reports by midnight, which was the start of the grievant's next scheduled shift. Bryant then ordered the grievant to have the reports on Bryant's desk by midnight. On March 28, at 2:00 p.m., the grievant delivered two overdue official time reports to Musegades at the El Centro Headquarters. The report for the latest pay period, however, was not submitted.

At the same time, the grievant contacted the Union's president to obtain guidance about the correct interpretation of the agreement provision concerning the submission of official time reports. The grievant was apprised, for the first time, of the MOU and that the Union's interpretation of the MOU provided for a 2-week extension for the submission of reports following the end of a pay period.

On April 21, 1989, the Agency's Regional Labor Relations Officer sent a letter to the grievant reminding him that he was required to submit a report at the end of each pay period regardless of whether official time had been used during that pay period. The grievant was further advised that, unless otherwise directed by appropriate authority, he was required to submit his official time reports directly to his supervisor, who would then forward the reports through official channels to the Chief Patrol Agent. The Labor Relations Officer also advised the grievant that his failure to furnish timely reports directly to his supervisor could result in the disapproval of official time and could be the basis of disciplinary action.

On April 26, the Agency issued a proposed 5-day suspension of the grievant for insubordination and failure to comply with instructions and procedures. Specifically, the Agency charged that the grievant had failed to submit official time reports within a certain time period and had failed to submit the reports to the prescribed Agency official. The Union responded to the proposed suspension by claiming that the orders given by Bryant and Musegades did not comply with Article 7E of the agreement or the MOU; that the orders were contradictory as to which officials were to receive the reports; and that the discipline was inappropriate in view of the fact that the grievant was engaged in protected union activity. On May 25, 1989, the Agency sustained the proposed suspension, which became effective on June 4, 1989.

B. 10-Day Suspension

Upon the grievant's return from his 5-day suspension, Musegades informed the grievant that, although the language of the MOU was "'poorly constructed'" the "'real intent'" of the parties was to require that official time reports be furnished immediately upon the conclusion of the pay period. Award at 7. Musegades ordered the grievant to submit his reports to his first-line supervisor by midnight of the first Sunday after the end of each pay period. The grievant was also warned that a failure to follow this order could result in further disciplinary action.

Based on Musegades' instructions, the grievant was required to submit his official time reports on July 2, 16, and 30. By July 30, the grievant had not submitted any of these reports. However, on July 30, the grievant tried to complete the official time reports while on duty. He was told by management that he could not do so on duty time and was given a field assignment for that shift. Thereafter, on August 4, the Agency proposed that the grievant be suspended for ten days for insubordination and failure to comply with instructions and procedures for not having submitted the three official time reports.

On August 6, the grievant submitted the three official time reports with a written explanation that they would have been submitted on July 30, had the grievant not been prevented from completing the reports on duty time. The grievant also stated that he would complete the reports on his own time. Musegades responded to the grievant advising him that he was entitled to official time to complete the reports and, on request, would be granted official time for that purpose. Musegades also sustained the 10-day suspension.

III. Arbitrator's Award

The following two issues were presented to the Arbitrator for resolution:

1) Was there just cause for the five-day suspension of [the grievant] effective June 4, 1989? If not, what is the appropriate remedy?

2) Was there just cause for the ten-day suspension of [the grievant] effective September 25, 1989? If not, what is the appropriate remedy?

Award at 2.

With regard to the 5-day suspension, the Arbitrator found that the grievant was given different orders by Musegades and Bryant as to which Agency official the grievant should submit his official time reports. Notwithstanding these differences, the Arbitrator found that the grievant was directed to submit the reports to management in the Calexico office and that he "'disobeyed' the literal requirement of those orders . . ." by delivering the reports to the Chief Patrol Agent in the El Centro Headquarters. Award at 12. According to the Arbitrator, "[t]hese facts establish a technical case of insubordination, or 'self-help'[.]" Id. (footnote omitted).(2)

The Arbitrator determined that his inquiry did not end with a finding of insubordination. Rather, the Arbitrator looked to the Authority's decision in 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 (1990) (Tinker), in which the Authority found that if an employee is disciplined while engaging in union activities, a further determination must be made as to whether the employee's actions constitute flagrant misconduct so as to remove the employee from the protection of the Statute.

The Arbitrator discussed the Union's interpretation of the contractual requirements regarding the submission of official time reports and noted that the parties "have a genuine dispute concerning the procedure they negotiated in Article 7E and modified in the MOU." Award at 13. The Arbitrator then found that the grievant, who was "engaged in union activity when he submitted the 7E reports" to the Chief Patrol Agent, was "attempt[ing] to enforce a contractual right which he believed had been negotiated by the Union." Id. According to the Arbitrator, such conduct constituted an exercise of protected rights under section 7102 of the Statute.(3) The Arbitrator further found that the grievant's conduct was not so outrageous and insubordinate as to be removed from the protection of the Statute. In reaching this result, the Arbitrator found no evidence that the grievant was "impolite, antagonistic, or disrespectful in the manner in which he refused to comply with management's orders." Id. at 14. The Arbitrator also noted that the grievant had satisfied the purpose of the Agency's orders, which was to obtain the official time reports, by submitting them prior to the Agency's deadline. Consequently, the Arbitrator concluded that the 5-day suspension was not for just cause.

With regard to the 10-day suspension, the Arbitrator found, in agreement with the Agency, that the filing of reports documenting the time spent in representational activities is not protected union activity. Instead, the Arbitrator found that the filing of such reports "is a legitimate interest of management and relat[ing] to an employee's employment. Obviously, the [Agency] has the right to request that employees report their time . . . for purposes of accurate compensation or other legitimate reasons relating to the employer-employee relationship." Id. at 15.

The Arbitrator further found that because the Agency's right to the reports "is derived from [the] [g]rievant's status as an employee, . . ." the reporting of the grievant's official time was equivalent to "any other time reporting requirement[s] employees are expected to furnish and which are normally done on duty time." Id. Consequently, the Arbitrator concluded that the Agency improperly denied the grievant the opportunity to complete the reports on duty time on July 30, and that the 10-day suspension was without just cause.

As his award the Arbitrator directed the Agency to rescind the suspensions and purge any references to the suspensions from the grievant's personnel file, and to make the grievant whole for any lost wages and benefits. Additionally, the Arbitrator denied the Union's request for reimbursement of expenses in connection with its preparation and presentation of the case in the arbitration proceeding.

IV. Exceptions Concerning 5-Day Suspension

A. Agency's Exceptions

The Agency generally excepts to the portion of the award pertaining to the 5-day suspension on the basis that it is contrary to law, namely sections 7102 and 7106 of the Statute, and because it is based on a nonfact. The Agency also excepts to the Arbitrator's finding that there was no just cause to sustain the suspension, and to the relief ordered by the Arbitrator.

More specifically, the Agency contends that the Arbitrator misinterpreted and misapplied the Authority's decision in Tinker. The Agency argues that Tinker is applicable only when an employee disobeys an order that constitutes an unfair labor practice based on unlawful interference with protected activity. For a variety of reasons, including its view that only patent breaches of a collective bargaining agreement can constitute unfair labor practices, the Agency maintains that no unfair labor practice occurred in this case.

The Agency also asserts that the Arbitrator erroneously concluded that the grievant was engaged in protected activity. The Agency argues that this case is controlled by American Federation of Government Employees, Local 1857 and Sacramento Air Logistics Center, McClellan Air Force Base, 34 FLRA 745 (1990) (Sacramento Air Logistics Center), and that the Arbitrator's reliance on Tinker justifies setting aside the award. The Agency explains that in Sacramento Air Logistics Center, the Authority found that an employee who refused to comply with a management order on the basis that it conflicted with a collective bargaining agreement was not engaging in protected activity. The Agency asserts that the same holding applies here, as the grievant's conduct in "refusing to follow [an] order was not protected activity, since the order did not constitute an alleged violation of the Statute, but simply an alleged contract violation." Exceptions at 26 (emphasis omitted). The Agency maintains that the grievant was not engaged in protected activity and that the Arbitrator erred in stating that "'an attempt to enforce a right negotiated by the Union constitutes the exercise of protected union activity.'" Id. at 27. According to the Agency, the award is "based on a fundamental misinterpretation of § 7102." Id. (4)

As an alternative argument, the Agency excepts to the Arbitrator's determinations that: 1) whether the grievant's interpretation of the parties' agreement was correct was immaterial; and 2) the grievant's interpretation of the agreement was arguably correct. The Agency argues that "assuming arguendo that self-help is available . . . in a case involving a disputed contract interpretation," the Arbitrator's finding that the grievant was arguably correct is incorrect as a matter of law. The Agency argues that this latter finding is also inconsistent with section 7106(a) of the Statute because the "contract provisions at issue would have been nonnegotiable." Id. at 31. The Agency claims that it could not contractually bind itself by "specif[ying] which agency managers will receive reports . . . [or] when work assignments will be completed." Id.

Next, the Agency contends that the award is inconsistent with sections 7102 and 7106 of the Statute to the extent the Arbitrator determined that the grievant's conduct had to be flagrant in order for the Agency to take disciplinary action. The Agency states that it is irrelevant whether the grievant's conduct was so flagrant as to remove him from the protection of section 7102 because he was not engaged in protected activity. The Agency argues again that the Arbitrator erroneously applied Tinker and incorrectly determined that the grievant's "self-help remedy with respect to a contract dispute was protected activity." Id. at 32.

In other exceptions, the Agency alleges that the award violates its right to discipline under section 7106(a)(2)(A) of the Statute. The Agency refers to statements made by the Arbitrator to the effect that nothing in the award is intended to condone the grievant's self-help and that the Agency engaged in self-help by using the disciplinary procedure to enforce its interpretation of the agreement rather than filing a grievance for that purpose. The Agency contends that the Arbitrator was condoning the grievant's use of self-help, thereby interfering with management's right to discipline. The Agency also argues that the Arbitrator's conclusion that management cannot use discipline to enforce its interpretation of the agreement and, instead, must file a grievance interferes with the right to discipline.

The Agency further argues that the award interferes with management's right to discipline and is based on a nonfact because the Arbitrator found: 1) the 5-day suspension was based on the untimely submission of only one official time report; and 2) the primary basis for the suspension was the submission of the reports to the wrong manager. The Agency states that there were several reports that were not submitted timely and that management has the right to "impose the suspension based on the lateness of the reports whether or not they had been submitted to the proper level of supervision." Id. at 36. The Agency further states that the Arbitrator's "determination that management was . . . not serious about the tardiness [of the reports] was based on a non-fact[,] and "is reversible error . . . ." Id. at 39. Finally, the Agency argues that the Arbitrator's finding that there was only one late official time report, and thus his failure to include two other late reports, was a nonfact, which was central to the Arbitrator's disposition of the case, and without which a different result would have been reached.

B. Union's Opposition

The Union argues, generally, that the Agency's exceptions constitute an attempt to relitigate this case before the Authority and to relitigate Tinker, and that such exceptions do not constitute a basis for finding the award deficient. More specifically, the Union disputes the Agency's interpretation of Tinker and argues that the Arbitrator properly decided that the grievant's attempts to enforce a contractual right involved activity that is protected under the Statute. The Union also asserts that the Agency's reliance on Sacramento Air Logistics Center is misplaced because the grievant here was engaged in protected activity. The Union also disputes the application of IRS v. FLRA.

In response to the Agency's alternative argument, relating to the grievant's interpretation of the agreement, the Union states that "nothing in the Statute conditions protected activity on the ultimate correctness of a position taken under § 7102." Opposition at 10. In response to the Agency's contention that the award is based on a non-fact, the Union maintains that the Arbitrator considered all the facts presented in reaching his decision and that the Agency is merely disagreeing with the Arbitrator's evaluation of the evidence. The Union also states that "an arbitration award need not reference every point and issue considered in arriving at the conclusions therein." Id. at 12-13 (footnote omitted).

Finally, the Union disagrees with the Agency's exceptions that the award is inconsistent with management's right to discipline. Essentially, the Union argues that the Arbitrator properly found that the Agency lacked just and sufficient cause for imposing the 5-day suspension.

C. Analysis and Conclusions

The Agency has failed to establish that the award is deficient because it is contrary to sections 7102 and 7106 of the Statute or is based on a non-fact. Therefore, we will deny these exceptions.

The Agency excepts to the award on the basis that the Arbitrator misapplied Tinker, and that Tinker is applicable only when unfair labor practice conduct is involved. The Agency also asserts that the Arbitrator incorrectly found that the grievant was engaged in protected activity and, further, that certain statements and findings made by the Arbitrator are inconsistent with management's right to discipline. These exceptions provide no basis for finding the award deficient.

The issue presented to the Arbitrator was whether there was just cause for the 5-day suspension. It is well established that an arbitrator may determine whether all or part of a disciplinary action is not for just and sufficient cause and set aside or reduce an imposed penalty. See U.S. Department of Health and Human Services, Austin, Texas and National Treasury Employees Union, Chapter 219, 40 FLRA 1035, 1041 (1991) (Department of Health and Human Services). Exceptions that contest an arbitrator's application of a just cause standard, absent a showing of an unlawful application, do not constitute a basis for finding an award deficient. See, for example, Department of Justice, Federal Prisons Systems, El Reno Federal Correctional Institution, El Reno, Oklahoma and American Federation of Government Employees, Council of Prisons Locals, Local No. 171, 35 FLRA 329, 337 (1990) (denying exceptions based, in part, on arbitrator's finding that 14-day suspension was not for just and sufficient cause and mitigating penalty). The Agency's exceptions fail to establish that the Arbitrator improperly determined that the 5-day suspension was not for just cause. Rather, the exceptions constitute disagreement with the Arbitrator's findings, reasoning and conclusions.

In assessing whether there was just cause in this case, and concluding that there was not, the Arbitrator examined a number of factors. The Arbitrator noted the contractual requirement obligating certain Union officials to complete official time reports and the responsibility of the grievant to submit those reports, the apparent conflict between the collective bargaining agreement and the MOU in setting forth the reporting requirements, and the grievant's actual compliance with the Agency's deadline in submitting the reports. Ultimately, the Arbitrator concluded, based on the analysis used by the Authority in Tinker, that the grievant's conduct, though technically insubordinate, did not constitute flagrant misconduct so as to warrant the imposition of disciplinary action.

We find unpersuasive the Agency's assertions that the analysis in Tinker can only be applied when an unfair labor practice occurs and, further, that the Arbitrator's use of Tinker here was improper. There is simply no basis on which to conclude that an arbitrator could not apply the analysis set forth in Tinker, as the Arbitrator did here, to assess whether just cause exists for a suspension.

Also used by the Arbitrator to support his conclusion that there was no just cause to sustain the disciplinary action were his findings and discussion regarding protected activity under section 7102 of the Statute. Contrary to the Agency's assertion, we find that the Arbitrator did not fundamentally misinterpret section 7102 of the Statute. However, in view of the Arbitrator's conclusion that there was no just cause for the suspension, we need not decide the scope of the grievant's protected activity in this case. We also find misplaced the Agency's argument that this case is controlled by Sacramento Air Logistics Center, rather than Tinker, and that the Arbitrator should have reached the same conclusion. Such an assertion merely constitutes disagreement with the Arbitrator's findings of fact and evaluation of the evidence and provides no basis for finding the award deficient. See U.S. Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 39 FLRA 1149, 1153 (1991)

We also find no merit to the Agency's alternative argument relating to the Arbitrator's findings concerning the grievant's interpretation of the parties' agreement. In view of the Arbitrator's conclusion that there was no just cause to sustain the disciplinary action, we need not determine whether an employee's attempt to enforce an arguable contract right is protected activity under the Statute. However, we reject the Agency's assertion that it could not contractually bind itself to a provision that would specify the manager designated to receive official time reports and that such a provision would have been nonnegotiable. There is nothing in the Statute that would prevent the Agency from agreeing to establish such procedures. See, for example, Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 21 FLRA 580, 587 (1986) (proposal specifying which manager will be designated to attend mediation sessions found bargainable at election of agency, although there was no evidence agency had elected to bargain in circumstances of case); American Federation of Government Employees, AFL-CIO, Local 3511 and Veterans Administration Hospital, San Antonio, Texas, 12 FLRA 76, 91 (1983) (proposal requiring agency to notify employee, in writing, as to who occupies particular management position constitutes negotiable procedure).

We also reject the Agency's exceptions that the award is inconsistent with the Agency's right to discipline. As previously stated, in determining whether all or part of a disciplinary action is not for just and sufficient cause, arbitrators may set aside or reduce an imposed penalty. The Arbitrator's award rescinding the suspension thus was fully consistent with the Arbitrator's remedial authority. See U.S. Department of Veterans Affairs, Medical Center, Fayetteville, North Carolina and American Federation of Government Employees, Local 2080, 42 FLRA 1181, 1183-84 (1991) (Authority denied agency's exception that award was contrary to section 7106(a)(2)(A) because arbitrator found that issuance of admonishment was not for just and sufficient cause); Department of Health and Human Services (arbitrator determined that part of disciplinary action was not based on just cause and reduced penalty).

We further find without merit the Agency's contention that statements made by the Arbitrator warrant a finding that the award interferes with management's right to discipline. The Agency has misconstrued these statements. First, the Agency claims that the Arbitrator was condoning the grievant's use of self-help when, clearly, the Arbitrator said that nothing in his award was designed to condone such action. Second, the Agency states that the Arbitrator's conclusion that the Agency should have filed a grievance rather than impose discipline to enforce its interpretation of the agreement interferes with the right to discipline. The Arbitrator was merely suggesting that the Agency utilize the grievance machinery to resolve questions concerning the proper interpretation of the agreement, after having noted previously that there was a dispute as to the proper application of the provisions of the agreement and the MOU relating to the submission of official time reports. Also, the Arbitrator did not conclude, as a general matter, that the Agency could not impose discipline under all circumstances. The Arbitrator simply found that, in this case, there was no just cause for the suspension imposed on the grievant.

We also reject the Agency's assertion that under IRS v. FLRA, the Agency could not be prevented from imposing discipline. Subsequent to the Supreme Court's decision, the Authority held that "[i]t is well established that arbitrators have the authority under the Civil Service Reform Act to resolve grievances over whether disciplinary action was warranted and, if so, whether the penalty assessed was appropriate." U.S. Department of Justice, Immigration and Naturalization Service, New York District Office and American Federation of Government Employees, Immigration and Naturalization Service Council, Local 1917, 42 FLRA 650, 658 (1991) (rejecting agency arguments that, under the Court's decision, an arbitrator can reverse disciplinary action only if the action is contrary to law and, further, that award interfered with management's right to discipline by setting aside a 10-day suspension).

Finally, we reject the Agency's assertion that the award is based on a non-fact. To establish that an award is deficient because it is based on a nonfact, it must be demonstrated that the central fact underlying the award is clearly erroneous, and constitutes a gross mistake of fact but for which a different result would have been reached by an arbitrator. See, for example, U.S. Department of Labor, Washington, D.C. and American Federation of Government Employees, Local 12, 41 FLRA 472, 478 (1991). In support of its exception, the Agency states that the Arbitrator found that the suspension was based on only one untimely report, rather than including several others, and that the primary basis of the suspension was the submission of the reports to the wrong manager. Contrary to the Agency's assertion, there is nothing in the award to indicate that the Arbitrator failed to take into account several untimely submitted reports, even if he did not reference a report for a later pay period, or that he was wrong in determining the primary basis of the award. In our view, the Agency is merely disagreeing with the Arbitrator's factual findings, which does not constitute a basis for finding the award deficient.

In sum, we conclude that the Agency's exceptions concerning the 5-day suspension do not establish that the award is deficient.

V. Exceptions Concerning 10-Day Suspension

A. Agency's Exceptions

The Agency contends that the Arbitrator incorrectly found that the grievant was immune from discipline for submitting untimely reports because he was engaged in protected activity. The Agency further argues that the Arbitrator's finding, that submitting the official time reports late was protected activity, was based on a nonfact, but for which a different result would have been reached.

The Agency also excepts to a statement made by the Arbitrator that the Agency has no right to direct how its employees spend their official time. The Agency states that there are circumstances, such as those present here, in which an agency can order an employee to perform work assignments, rather than engage in union activities, where there is a demonstrated need for the work assignments. Also, the Agency argues that the Arbitrator's determination that the Agency was directing the grievant on how to use official time is based on a nonfact. The Agency states that as the Arbitrator found that completing the official time reports was a work assignment, the Agency was simply directing work assignments, rather than directing the use of official time.

The Agency also excepts to the Arbitrator's finding that by giving the grievant a field assignment on July 30, thereby preventing the grievant from completing the time reports, the Agency could not impose discipline based on their untimely submission. The Agency states that while discipline ordinarily cannot be imposed when an agency prevents an employee from completing a work assignment, the grievant here failed to timely submit the reports. Therefore, the Agency argues that the field assignment given to the grievant may not operate as a defense to the grievant's discipline, and the Arbitrator's finding that the grievant was improperly denied the opportunity to complete the reports is based on a nonfact. The Agency notes that this argument is raised with respect to the reports that were due on July 2 and July 16, 1989, but not with respect to the report that was due on July 30.

B. Union's Opposition

The Union argues that the Arbitrator properly determined that the grievant was engaged in protected activity and that the Agency's exception constitutes an attempt to relitigate the merits of the case before the Authority.

The Union also asserts that the Arbitrator's finding that the Agency could not direct employees in how to use official time was merely a reiteration of a concession made by the Agency, and quoted by the Arbitrator in his award, in which the Agency acknowledged that, in this proceeding, it had no right to direct employees regarding their use of official time. The Union also disputes the Agency's contention that the award is based on a nonfact. The Union argues that the record clearly indicates that the Agency was not willing to permit the grievant duty time to complete the official time reports and that the facts support the Arbitrator's award.

Finally, the Union maintains that the Agency's exception to the Arbitrator's findings regarding the untimely submission of the reports and the basis for the Agency's imposition of discipline constitute mere disagreement with the Arbitrator's findings of fact, reasoning and conclusions.

C. Analysis and Conclusions

We conclude that the Agency has failed to establish that the award is based on a nonfact or is otherwise deficient. Consequently, the Agency's exceptions must be dismissed.

First, we reject the Agency's exceptions that are based on the view that the Arbitrator found the grievant was engaged in protected activity. The Agency has misapprehended the award. The Arbitrator specifically found, in his discussion of the 10-day suspension, that "the submission of reports documenting the time for representational activities is not protected activity[.]" Award at 15.

Second, we reject the remaining Agency assertion that the award is based on a nonfact. In support of this assertion, the Agency argues that the field assignment given to the grievant on July 30 cannot be used as a defense to the suspension because two official time reports were due prior to that date. Therefore, the Agency argues that to the extent the Arbitrator found that the grievant was improperly denied the opportunity to complete all of the reports on duty time on July 30, the award is based on a nonfact. In our view, the Agency has failed to establish that the central fact underlying the award is clearly erroneous and constitutes a gross mistake of fact, but for which a different result would have been reached by the Arbitrator. First, we note that the Arbitrator recognized that the July 2 and 16 reports were due prior to July 30. Award at 8. However, there was apparently no evidence before the Arbitrator that the Agency intended to discipline the grievant for the failure to submit those reports prior to July 30. Accordingly, the Agency has not demonstrated that the Arbitrator would have reached a different result or that the Arbitrator would not have reached the same result had he dealt with each of the tardy reports separately. The Agency's exception in this regard constitutes mere disagreement with the Arbitrator's findings and conclusions and does not present a basis on which to set aside the award.

VI. Decision

The Agency's exceptions are denied.




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

1. Section 7E of the agreement provides as follows:

In order that work loads may be adjusted to compensate for time spent on Union activities, time used to perform approved labor-management functions shall be recorded in accordance with the following procedure:

At the end of each pay period each Regional Vice-President and each National Council President will certify in writing to the Chief Patrol Agent or District Director, as appropriate, the number of hours spent on approved Union duties during that pay period. . .

Section 6 of the MOU provides as follows:

Final Determination. Regional

Vice-Presidents and National Presidents will submit a report of time spent on labor relations functions (which are appropriate under the master agreement, not internal Union business) in accordance with Article 7E using the attached report form supplied by management. A report will be submitted at the end of each pay period for the previous pay period regardless of whether LMR time was used. 7E reports will be supplied to supervisors who will forward tem [sic] promptly through the chain of command (District or Sector and Regional levels) to the C.O. . . .

2. The Arbitrator explained that his use of the term "technical" denoted the fact that the Agency received the reports prior to the established deadline.

3. The Arbitrator noted that as the contract interpretation issue was not submitted to