[ v46 p893 ]
46:0893(80)AR
The decision of the Authority follows:
46 FLRA No. 80
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS
LOCAL 11
(Union)
and
U.S. DEPARTMENT OF THE NAVY
NAVAL ELECTRONIC SYSTEMS ENGINEERING CENTER
VALLEJO, CALIFORNIA
(Agency)
0-AR-2279
_____
DECISION
Decision 8, 1992
_____
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Nancy Hutt filed by 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 Agency filed an opposition to the Union's exceptions.
The Arbitrator found that the grievant was properly charged with two instances of absence without leave (AWOL) and that the Agency had just cause to suspend the grievant for 5 days. Accordingly, she denied the grievances.(*)
We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant was assigned to attend mandatory training from February 11 through March 8, 1991. The grievant had requested to attend the training in Orlando, Florida, but was assigned to the training at Oakland, California. Because of the Agency's proximity to Oakland, travel and per diem were not available to the grievant to stay at a hotel during the training. Consequently, the grievant commuted to Oakland, which added over 2 hours additional time to his normal daily commute. Although the grievant's supervisor had suggested that the grievant check on the availability of Federal Government quarters near the training center in order to avoid a daily commute, the grievant did not pursue the availability of such quarters. In addition, the grievant commuted to Oakland in his own automobile. According to the Arbitrator, the grievant testified that he had requested a rental car, but that his request was denied by his supervisor. The grievant's supervisor testified that he had no recall of such a request, but that if the grievant had requested a rental car, the car would have been allowed.
Prior to attending the training in Oakland, the grievant's department director did not discuss official travel procedures with the grievant as required by the Agency's regulations. According to the Arbitrator, the director testified that he did not discuss procedures with the grievant because the grievant had 15 years of Federal employment and that, therefore, the director did not believe the grievant needed the discussion.
At the outset of the training, the grievant received oral and written notification concerning the procedures with respect to attendance. The orientation materials specifically advised students that if they were absent from class, they were to notify the lead instructor for the class and their immediate supervisor for leave purposes. Students were also informed that they were to notify their respective agencies of any requests for leave. According to the Arbitrator, the grievant claimed that he did not receive the written materials on attendance and that the class was informed by the instructors that the training center would inform the student's agency of any leave taken by a student.
While the grievant was attending training, he received a letter of admonishment from his supervisor because of the grievant's failure to account on his time card for leave taken on February 8, despite three requests by his supervisor to do so. The letter advised the grievant that the specific reason for the admonishment was that he had not taken the appropriate action to ensure that his time card accurately reflected his working hours. On February 22, prior to going to training, the grievant met with his supervisor at the Agency's premises to discuss the letter. During the 4 weeks of class, the grievant was regularly tardy. On March 6, the supervisor called the training center to check on the grievant's attendance. An instructor informed the supervisor that the grievant had been 2 hours late on February 21 and had been absent on March 4. The supervisor called the grievant and questioned him as to why he had not reported his leave. The grievant told him that the training center was to notify the Agency as to his leave. The grievant's supervisor directed the grievant to obtain this instruction in writing. According to the Arbitrator, the grievant testified that upon trying to do so, he was informed by an instructor that he had misunderstood the instructions.
The grievant also testified at the arbitration hearing that he was late to class on February 21 because of car problems and was absent on March 4 because he was ill. After returning to the Agency upon completion of training, he submitted a training voucher noting these absences and attached to the voucher leave slips for February 21 and March 4. He subsequently discovered from his pay check that his supervisor had charged him with AWOL for February 21 and March 4.
Thereafter, the grievant, in addition, was suspended for 5 days for failing to follow proper leave procedures, based on the absences of February 21 and March 4. The grievant was not informed in advance that his supervisor was proposing to suspend him for 5 days, and there were no discussions with the grievant in advance of the proposed suspension.
The grievant filed a grievance over the AWOL charges and filed a second grievance when he was suspended for 5 days. The grievances were not resolved and were submitted together to arbitration.
The Arbitrator sustained the AWOL charge for February 21. The Arbitrator found that the evidence clearly established that the grievant did not call his supervisor concerning the 2-hour absence on February 21. The Arbitrator noted that the grievant testified that he had notified the training center, but the Arbitrator found that there was no corroborating evidence and that the instructors stated that they had received no notice of such absence. The Arbitrator further found that the grievant's understanding that the training center would notify the Agency of his leave was not credible. The Arbitrator noted that the instructors orally advised the class on attendance procedures and that the procedures were set forth in the orientation materials. She found that both the oral advice and the written orientation materials instructed students that they were to notify their supervisors of leave. She concluded that "[the] [g]rievant must be held accountable for his failure to notify his instructors that a section of his materials was missing, if indeed it was, on the attendance policy." Award at 14.
In addition, the Arbitrator noted the letter of admonishment that the grievant had received, which advised the grievant that he needed to ensure that his time card accurately reflected his working hours, and the fact that the grievant discussed the letter with his supervisor on February 22. The Arbitrator found that "[e]ven having received this letter the [g]rievant did not take the initiative to advise his [s]upervisor of his two hours of leave the day before. The [s]upervisor did not learn of the two hours of leave until March 6 when he spoke with an Instructor." Id. In the Arbitrator's view, "[a]fter 14 days elapsed the [s]upervisor reasonably concluded that the [g]rievant did not intend to report the leave." Id.
The Arbitrator also sustained the AWOL charge for March 4. She again noted that the training center's oral and written instructions on leave were explicit. She found that the grievant's failure to understand his responsibilities with respect to reporting leave was not justified. In addition, she explained that the training center incidents were not the only instances of attendance problems with the grievant. She noted that the grievant's supervisor had spoken with the grievant on numerous occasions about attendance, that the grievant had been removed from a flexible work schedule due to attendance problems, and that the grievant had received a letter of admonishment about his attendance. In the Arbitrator's view, the Agency had made it clear to the grievant that it expected from him accurate time card entries and reporting of leave.
The Arbitrator rejected the Union's claims that the actions against the grievant were retaliatory and that the grievant properly followed the Agency's requirements for reporting leave while in a travel status. She found the retaliation claim unsubstantiated. She also found that normal leave procedures applied to the grievant and that he did not comply with those procedures. She rejected the Union's argument that it was sufficient for the grievant to file a travel voucher that indicated his leave with leave request forms attached.
Having sustained the AWOL charges, the Arbitrator concluded that the Agency had just cause to suspend the grievant. In addition, she concluded that the 5-day suspension was an appropriate penalty. She noted that the Agency's schedule of offenses and recommended penalties provided for penalties ranging from reprimand to removal for the first offense of unauthorized absence on 1 or more scheduled work days and that the grievant's suspension was within the provided range. Furthermore, she found that the evidence supported the Agency's position that lesser measures had been ineffective and that the 5-day suspension was necessary to "catch the attention of the [g]rievant based on his past leave violations." Id. at 17.
Accordingly, the Arbitrator denied the grievances.
III. First Exception
A. Positions of the Parties
1. The Union
The Union contends that the Arbitrator erred by failing to address the department director's failure to advise the grievant of the requirements for reporting leave while in a travel status, as required by the Agency's regulations. The Union notes that the parties' collective bargaining agreement does not address the issue of leave while in a travel status. The Union maintains, however, that "[c]ommon sense would dictate" that an employee in a travel status would not follow the normal leave procedures. Exceptions at 6.
2. The Agency
The Agency maintains that the grievant had been an employee for of the Agency almost 14 years and had traveled on numerous occasions. The Agency argues that merely because the department director did not remind the grievant of matters he already knew does not absolve the grievant of his responsibilities under the leave and timekeeping procedures of the Agency. The Agency notes that, moreover, the leave and timekeeping procedures in no manner indicate that leave reporting and approval can be handled on travel vouchers, as was done by the grievant. The Agency also notes that the fact that the grievant did not call his supervisor to request sick leave when he was sick at his own home and not away on travel and the fact that the grievant did not mention his late arrival on February 21 when he met personally with his supervisor on February 22 further support the Arbitrator's award upholding the AWOL charges.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award is deficient.
We reject the Union's contention that the award is deficient because the Arbitrator did not specifically address the failure of the department director to advise the grievant of the requirements for reporting leave while in a travel status. The Authority has repeatedly held that the fact that an arbitrator's opinion does not mention an issue does not establish that the arbitrator did not address and rule on the issue. For example, Army Materials and Mechanics Research Center and American Federation of Government Employees, Local 3404, 32 FLRA 1156, 1158 (1988) (Army Materials and Mechanics Research Center); American Federation of Government Employees, Local 2327 and Department of Health, Education, and Welfare, Social Security Administration, 5 FLRA 189, 192 (1981) (citing and quoting Meat Cutters Local 195 v. Cross Brothers Meat Packers, Inc., 372 F. Supp. 1274, 1277 (E.D. Pa. 1974)). Likewise, the Authority has repeatedly held that there is no general statutory obligation to set forth any specific findings or rationale to support an award denying a grievance. For example, National Association of Government Employees, Local R5-66 and U.S. Department of Veterans Affairs Medical Center, Memphis, Tennessee, 40 FLRA 504, 509-10 (1991) (VA Medical Center). In our view, the Arbitrator by implication found that the director's failure to discuss leave with the grievant did not absolve the grievant of his responsibilities, and the award is not deficient by failing to specifically set forth that finding in denying the grievances. See Army Materials and Mechanics Research Center, 32 FLRA at 1158. Furthermore, to the extent that the Union is arguing that the award is deficient because the Arbitrator failed to sustain the grievances because of the director's failure to discuss leave with the grievant, we conclude that no basis is provided for finding the award deficient. We view the Union's argument to constitute nothing more than disagreement with the determination of the Arbitrator not to sustain the grievances because of the director's failure. As such, the argument provides no basis for finding the award deficient. See VA Medical Center, 40 FLRA at 510.
We also reject the Union's contention that the award is deficient because it applied the requirements of normal leave procedures to the grievant when he was in a travel status. The Arbitrator found that there was no specific procedure for reporting leave while in a travel status. Therefore, the Arbitrator concluded that normal leave procedures applied. The Union fails to establish otherwise. Instead, the Union merely disagrees with the Arbitrator's finding and conclusion. As such, the Union's contention provides no basis for finding the award deficient. See American Federation of Government Employees, Local 12 and U.S. Department of Labor, Benefits Review Board, Washington, D.C., 45 FLRA 233, 241 (1992).
Accordingly, we will deny the exception.
IV. Second Exception
A. Positions of the Parties
1. The Union
The Union contends that the Arbitrator erred by failing to consider requirements of the parties' collective bargaining agreement.
The Union notes that Article 14(A) of the agreement provides that "[b]efore having a discussion with an employee about a potential disciplinary adverse action, the supervisor will advise the employee of his/her right to Union representation during the discussion." The Union asserts that in this case management never discussed the matter with the grievant before proposing his suspension. The Union also notes that Article 14(A) provides that the penalty assessed will be corrective and not punitive. The Union argues that the 5-day suspension was excessive and did not meet the requirements of Article 14(A). The Union further argues that management failed to consider the "desires, convenience and comfort" of the grievant, as required by Article 26, Section 2 of the agreement, when it assigned the grievant to training. The Union asserts that management was aware of the adverse effect the long commute to training would have on the grievant's medical problems. The Union claims that, nevertheless, management denied his requests for another training site, for a rental car, and for temporary lodging.
2. The Agency
The Agency contends that the Arbitrator took into account all applicable requirements of the collective bargaining agreement.
The Agency asserts that there was no violation of Article 14(A) of the agreement in not discussing the matter with the grievant before proposing his suspension. The Agency maintains that under the circumstances, there was no purpose to be served by further discussions with the grievant. The Agency further asserts that the penalty assessed was in accordance with the agreement. The Agency maintains that the grievant's supervisor had used progressive discipline in dealing with the grievant's time and attendance problems and that the 5-day suspension was necessary to correct the grievant's conduct.
With respect to Article 26, Section 2 of the agreement, the Agency claims that management representatives were unaware of any medical problems of the grievant. The Agency states that the grievant never mentioned in his requests that the requests were being made to accommodate his medical problems, and the Agency questions how the medical problems were being accommodated by the requests. The Agency also states that Article 26, Section 2, in addition, provides that "the first consideration will be cost to the government." The Agency argues that the grievant was assigned to the site for training that provided a lower cost to the Government.
The Agency argues that the grievant never substantiated that he had requested a rental car and that his request was denied. In addition, the Agency questions the relevance of the rental car issue to the issue of the propriety of the AWOL charges and the grievant's suspension. The Agency claims that, with regard to the issue of lodging, as specifically found by the Arbitrator and conceded by the Union, the grievant never followed up on his supervisor's suggestions that the grievant check on the availability of Government quarters. The Agency asserts that in such circumstances, the Agency cannot be found to have violated Article 26, Section 2 of the agreement.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award is deficient.
As we noted with respect to the Union's first exception, the fact that an arbitrator's opinion does not mention an issue does not establish that the arbitrator did not consider and rule on the issue. In our view, the Arbitrator by implication either found no violations of Article 14(A) or Article 26, Section 2 or found that any violation did not absolve the grievant of his responsibilities, and the award is not deficient by failing to specifically set forth those findings in denying the grievances. See VA Medical Center, 40 FLRA at 510.
Furthermore, to the extent that the Union is arguing that the Agency violated Article 14(A) and Article 26, Section 2 and that the award is deficient because it sustains the grievances in the face of those violations, we construe the Union's argument as contending that the award fails to draw its essence from the parties' collective bargaining agreement. To demonstrate that an award is deficient on this ground, it must be shown that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, National Federation of Federal Employees, Local 1781 and U.S. Department of Agriculture, Forest Service, 42 FLRA 703, 706 (1991) (Forest Service). These tests and the private sector cases from which they are derived make it clear that an award will not be found to fail to draw its essence from the agreement merely because a party believes that the arbitrator erred in failing to find a violation of the agreement, see Forest Service, 42 FLRA at 706, or in failing to find that a violation warranted sustaining the grievance, see VA Medical Center, 40 FLRA at 510. The interpretation and application of a collective bargaining agreement is left solely to the arbitrator because it is the arbitrator's interpretation and application of the agreement for which the parties have bargained. Forest Service, 42 FLRA at 706. The Union fails to establish that anything in the Arbitrator's award disregards the agreement or is irrational, unfounded, or implausible. Accordingly, the Union's arguments provide no basis for finding the award deficient.
We find that the Union's argument that, contrary to the determination of the Arbitrator, the penalty assessed was excessive and violated Article 14(A) of the collective bargaining agreement, also fails to establish that the award does not draw its essence from the agreement. The Union's argument constitutes nothing more than disagreement with the Arbitrator's finding and conclusion on the issue of the appropriateness of the penalty and provides no basis for finding the award deficient. See U.S. Department of Veterans Affairs, National Memorial Cemetery of the Pacific and International Association of Machinists and Aerospace Workers, Hawaii Federal Lodge 1998, 45 FLRA 1164, 1172 (1992) (National Memorial Cemetery) (the Authority reconfirmed that it is for the arbitrator to determine whether a disputed disciplinary action was warranted and, if so, whether the penalty assessed was reasonable).
Accordingly, we will deny the exception.
V. Third Exception
A. Positions of the Parties
The Union contends that the award is deficient because the Arbitrator did not address the Agency's failure to properly apply the Douglas factors in determining the penalty.
The Agency contends that this exception provides no basis for finding the award deficient because the Douglas factors do not apply to 5-day suspensions. The Agency claims that, in any event, the deciding official properly took into account the applicable factors in determining to suspend the grievant for 5 days.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award is deficient. Contrary to the Union's contention, the Agency was not required to apply, and the Arbitrator was not required to consider in this case, the disciplinary penalty guidelines set forth by the Merit Systems Protection Board (MSPB) in Douglas v. VA, 5 MSPR 281 (1981) (Douglas). We have repeatedly held that arbitrators are not bound by the same substantive standards as the MSPB when resolving grievances over disciplinary actions, as in this case, that are not covered by 5 U.S.C. § 7512. For example, American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 45 FLRA 822, 829 (1992). Consequently, the Arbitrator's failure to consider the Douglas factors in assessing the appropriateness of the penalty provides no basis for finding the award deficient. Furthermore, to the extent that the Union is again claiming that, contrary to the finding of the Arbitrator, the penalty was excessive, we reiterate that this determination was for the Arbitrator. See National Memorial Cemetery, 45 FLRA at 1172.
Accordingly, we will deny the exception.
VI. Fourth Exception
A. Positions of the Parties
1. The Union
The Union contends that the award is deficient by sustaining the AWOL charge for 2 hours for February 21. The Union states that Federal Personnel Manual (FPM) Supplement 990-2, Book 630, S2-7 provides: "Leave granted under this subchapter is exclusive of time actually and necessarily occupied in going to or from a post of duty and time necessarily occupied awaiting transportation." Exceptions at 9 (quoting FPM Supplement 990-2). The Union claims that on the basis of FPM Supplement 990-2, the grievant could not be charged with being AWOL on February 21 because at the time he was traveling from his residence to his temporary duty assignment.
2. The Agency
The Agency contends that FPM Supplement 990-2, Book 630, S2-7 is inapplicable. The Agency argues that the Union misapplies the FPM Supplement's provisions that allow employees who are serving outside the United States to make one return visit on leave to their place of residence without having to charge the travel time to leave.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award is deficient. The portion of FPM Supplement 990-2 quoted and relied on by the Union restates the provisions of 5 U.S.C. § 6303(d). These provisions apply only to an employee "(2) whose post of duty is outside the United States; and (3) who returns on leave to the United States[.]" 5 U.S.C. § 6303(d)(2)-(3). Clearly, these provisions are inapplicable to the grievant, and no other basis is apparent for excusing the grievant from accounting for his absence from class on February 21. Accordingly, we will deny the exception.
VII. Decision
The Union's exceptions are denied.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
*/ In denying the grievances, the Arbitrator also found that the grievant was not entitled to overtime compensation, as claimed. The Union does not except to this portion of the award, and it will not be addressed further.