34:0286(52)AR - DOJ, FEDERAL BUREAU OF PRISONS, FCI, PETERSBURG, VIRGINIA and AFGE, COUNCIL OF PRISON LOCALS, LOCAL 2052 -- 1990 FLRAdec AR
[ v34 p286 ]
The decision of the Authority follows:
34 FLRA NO. 52 U.S. DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS FEDERAL CORRECTIONAL INSTITUTION PETERSBURG, VIRGINIA and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES COUNCIL OF PRISON LOCALS LOCAL 2052 0-AR-1614 DECISION January 12, 1990 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 William S. Hart. The Arbitrator denied the grievance over the 5-day suspension of the grievant. The American Federation of Government Employees, Council of Prison Locals, Local 2052 (the Union) filed an exception 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 Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia (the Activity) did not file an opposition to the Union's exception. We conclude that, contraryto its assertion, the Union fails to establish that the award is contrary to 5 U.S.C. 7503 or 5 C.F.R. 752.203 or that the award is deficient on any other ground set forth in section 7122(a) of the Statute. Accordingly, we will deny the exception. II. Background On August 18, 1987, the grievant met with his supervisor to review the grievant's log. When the grievant's supervisor criticized the grievant's performance, the grievant expressed his anger verbally and stated that his supervisor was a racist. The grievant refused to sign an evaluation form and stated that "he was going home sick." Arbitrator's Award at 2. A short time later, the supervisor saw the grievant with his work files and reminded him of his responsibility for file accountability that evening. The grievant did not respond and departed the area. The grievant also was responsible for a unit team meeting scheduled for 5:30 p.m. that day. Shortly before the meeting, the grievant's supervisor learned that the grievant had left work at approximately 4:00 p.m. As a result, the meeting for which the grievant was responsible had to be rescheduled. The Activity suspended the grievant for 5 days for being disrespectful to his supervisor, failing to obey his supervisor's instructions, and being absent without leave. A grievance filed over the suspension was submitted to arbitration. III. The Arbitrator's Award The Arbitrator found that the grievant exhibited disrespectful conduct toward his supervisor, failed to carry out instructions, and was absent without leave. The Arbitrator rejected the Union's contention that the Activity violated 5 U.S.C. 7503 and 5 C.F.R. 752.203 by depriving the grievant of his right to review the material on which the Activity relied in proposing that the grievant be suspended for 5 days. The Arbitrator found that the grievant did not avail himself of this right. The Arbitrator noted that the letter of proposed disciplinary action notified the grievant (1) of his right to review these materials; (2) that the records would be made available to him; (3) of his right to make a response to the proposed action; and (4) that he would be permitted into the institution to review the materials. The Arbitrator found that the grievant's only response to the notice was a telephone call to the Activity on September 15, 1987. During this call, the grievant stated that there was no truth to the charges against him. The Arbitrator found that during the telephone call, the grievant had an opportunity to ask for the file on the proposed action, but did not do so. The Arbitrator stated that there was no evidence that the grievant attempted to make arrangements to obtain the file and concluded that "(i)t is not actionable, or even responsible, for an employee to fail to act in his own interest and on his own behalf and then claim that he was denied his rights. If rights are to be claimed, then they must be acted upon." Arbitrator's Award at 13. Accordingly, the Arbitrator denied the grievance. IV. Exception The Union contends that the award is deficient because it is contrary to 5 U.S.C. 7503 and 5 C.F.R. 752.203. The Union notes that under these provisions, an agency proposing to discipline an employee must: (1) inform the employee of the right to review the material which is relied on in proposing the action; and (2) provide the employee an opportunity to respond. The Union claims that the grievant testified that he made several requests for this material, but that the material was not provided by the Activity. The Union contends that the Arbitrator completely ignored the grievant's testimony and other evidence of the grievant's requests. The Union also claims that (1) the grievant was not provided a reasonable opportunity in which to respond to the charges; and (2) the Arbitrator erroneously concluded that the grievant was guilty of all the offenses with which he was charged. V. Analysis and Conclusions We conclude that the Union fails to establish that the award is contrary to 5 U.S.C. 7503 or 5 C.F.R. 752.203 or that the award is deficient on any other ground set forth in section 7122(a) of the Statute. The Arbitrator made a finding of fact, based on the evidence presented, that the grievant did not avail himself of his rights under 5 U.S.C. 7503 and 5 C.F.R. 752.203. The Union's contentions that the Arbitrator's finding is erroneous constitute nothing more than disagreement with the Arbitrator's findings of fact and evaluation of the evidence and testimony. Likewise, the Union's contention that the Arbitrator erroneously concluded that the grievant was guilty of all the charges constitutes nothing more than disagreement with the Arbitrator's factual findings that the grievant (1) exhibited disrespectful conduct toward his supervisor, (2) failed to carry out instructions, and (3) was absent without leave. Disagreement with an arbitrator's findings of fact and evaluation of evidence and testimony provides no basis for finding an award deficient. See, for example, Air Force Logistics Command, Tinker Air Force Base and American Federation of Government Employees, Local 916, 33 FLRA 96 (1988) (exceptions which merely disagree with the arbitrator's findings of fact and the arbitrator's evaluation of evidence and testimony provide no basis for finding an award deficient). Accordingly, we will deny the exception. VI. Decision The Union's exception is denied.