52:0577(56)AR - - AFGE, Local 940 and VA Regional Office and Insurance Center, Philadelphia, PA - - 1996 FLRAdec AR - - v52 p577

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52 FLRA No. 56

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 940

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

REGIONAL OFFICE AND INSURANCE CENTER

PHILADELPHIA, PENNSYLVANIA

(Agency)

0-AR-2846

_____

DECISION

November 15, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator James W. McMullen 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 Regulations. The Agency did not file an opposition to the Union's exceptions.

The Arbitrator denied a grievance challenging, as relevant here, the 5-day suspension of the grievant for being absent without leave (AWOL). For the following reasons, we conclude that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

In July 1995, the Agency informed the grievant, a shop steward, that he would be suspended for 5 days without pay because he had left his assigned work area to conduct Union business on three occasions. The Agency also canceled his annual leave that had been approved for that period.

Prior to these events, the Agency had given the grievant a letter of reprimand in April for being AWOL. In addition, on several occasions, the Agency had warned and reprimanded the grievant concerning his use of official time. For example, in February, the Agency had instructed the grievant to obtain authorization before leaving his work area to conduct Union business.

The Arbitrator concluded that the Agency had suspended the grievant for just cause and that the Agency had not committed an unfair labor practice or violated any other laws or rules in suspending the grievant. First, he found that the Agency had erred in finding that the absence of the grievant from his work area on one of the occasions to meet with an Equal Employment Opportunity (EEO) counselor was unauthorized and could be included as a basis for the suspension. In this regard, the Arbitrator stated, among other things, that at the hearing an Agency witness was not questioned as to whether she gave the grievant permission to meet with an EEO counselor. However, he found that the error was harmless and that the other two occasions when the grievant was absent from his work area to conduct Union business were sufficient cause for his suspension. He found that in both instances the grievant had failed to obtain authorization before leaving his work area. In this regard, the Arbitrator stated that the grievant's testimony that he had obtained appropriate permission to leave his work area lacked credibility. In reaching this result, he found that, as to the April reprimand, the grievant denied, but later admitted to, not having received permission to leave his work area, which cast doubt on his credibility. The Arbitrator further noted that the grievant had failed to challenge the facts of that incident and had not grieved the reprimand.

Accordingly, the Arbitrator denied the grievance.

III. Exceptions

The Union contends, without explanation, that the award violates "statutory and contractual" Union and employee rights under 5 C.F.R. § 430 and the parties' master agreement. Exceptions at 3. In addition, the Union makes the following specific arguments:

• the award is based on nonfacts because:

• the Arbitrator inc