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



[ v52 p577 ]
52:0577(56)AR
The decision of the Authority follows:


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 incorrectly found that the grievant did not contest the April letter of reprimand. The Union states that the grievant challenged the letter of reprimand by filing an EEO complaint.
  • the Arbitrator incorrectly found that at the hearing an Agency witness was not questioned as to whether she gave the grievant permission to meet with an EEO counselor on one of the dates at issue.
  • the Arbitrator incorrectly found that the same witness denied in testimony that she gave the grievant permission to leave his work area to conduct Union business. The Union states that the witness testified that she gave the grievant such permission.
  • the Arbitrator failed to consider evidence presented at the hearing that supports the Union's position. The Union states that the April letter of reprimand provided that the grievant was required to seek authorization to leave his work area only for "extended periods of time." Exceptions at 3. The Union claims that the Arbitrator failed to consider testimony that the Agency defines that term as in excess of fifteen minutes. The Union states that on the occasions at issue the grievant was absent from his work area for periods of fifteen minutes or less.

IV. Analysis and Conclusions

A. The Award Is Not Contrary to Law or Regulation

In support of its position that the award violates "statutory" rights, the Union relies only on 5 C.F.R. § 430.(*) As the Union's exception that the award is contrary to 5 C.F.R. § 430 involves the award's consistency with law, we must review the questions of law raised by the Arbitrator's award and the Agency's exception de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).

5 C.F.R. § 430 supplements and implements 5 U.S.C. § 4302, which provides for the performance appraisals of Federal employees. The Union has provided no explanation as to how any matters concerning the performance appraisals of Federal employees, as set forth in 5 C.F.R. § 430, are implicated in this case. Accordingly, as the Union has failed to establish that the award is deficient in this respect, the exception is denied.

B. The Award Does Not Fail to Draw Its Essence From the Master Agreement

We construe the Union's allegation that the award violates the parties' master agreement as an allegation that the award fails to draw its essence from that agreement. In this connection, other than a broad assertion that the award violates statutory and contractual Union and employee rights under the parties' master collective bargaining agreement, the Union provides no basis to conclude that the award is implausible, irrational, or unconnected to the wording of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990). Accordingly, the Union's contention that the award fails to draw its essence from the parties' master agreement does not establish that the award is deficient.

C. The Award Is Not Based on a Nonfact

To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593-94 (1993). The mere fact that the appealing party disputes an arbitral finding does not provide a basis for concluding that an award is based on a nonfact. Federal Employees Metal Trades Council, Local 127 and U.S. Department of the Navy, Mare Island Naval Shipyard, Mare Island, California, 51 FLRA 1259, 1261 (1996).

The Union disputes certain arbitral findings, including findings as to testimony presented at the hearing. However, the Union has not shown that the disputed findings were central facts underlying the award or that they were clearly erroneous. Accordingly, we find that the Union has not established that the Arbitrator has relied on a nonfact and, therefore, has not demonstrated that the award is deficient on this ground.

D. The Arbitrator Did Not Err in His Evaluation of the Evidence

The Union claims that the A