[ v34 p315 ]
The decision of the Authority follows:
34 FLRA NO. 60 U.S. DEPARTMENT OF THE AIR FORCE WARNER ROBINS AIR LOGISTICS CENTER ROBINS AIR FORCE BASE, GEORGIA and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 987 0-AR-1591 DECISION January 17, 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 Mathew W. Jewett. The Arbitrator found that a 10-day suspension of a unit employee was for just cause and, accordingly, denied a grievance contesting the suspension. The American Federation of Government Employees, Local 987 (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 Warner Robins Air Logistics Center, Department of the Air Force, Warner Robins, Georgia (the Agency) filed an opposition to the exception. For the reasons set forth below, we find that the Union failed to demonstrate that the award is contrary to law, rule, regulation, or other grounds as set forth in section 7122(a) of the Statute. We deny the exception. II. Background and Arbitrator's Award The grievant is employed by the Agency as a Sheet Metal Mechanic Leader. On July 28, 1987, the grievant was missing from his assigned work area from about 12:30 p.m. to the end of his shift at 4:15 p.m. Efforts to locate him, including having him paged over the public address system, were unsuccessful. The grievant did not punch out at the end of his work day on July 28 and his time card was missing. Although the grievant claimed that he had been in the Material Inventory Control (M.I.C.) area for the entire 4 hours, he was listed as being absent without leave for the period. After an investigation of the incident, he was given a 10-day suspension for his absence on July 28. The grievant filed a grievance contesting the suspension, and requesting that the suspension be removed from his record and that he be made whole for the time spent on suspension. The grievance was not settled and was submitted to arbitration. The Union argued before the Arbitrator that the 10-day suspension was not for just cause. The Union claimed that the grievant was on limited duty, assigned to desk work in the M.I.C. area on the date in question, and that no attempt had been made to locate him at that location. To support its position that the grievant was on duty, the Union provided written statements from two employees who stated that they had seen him in the M.I.C. area on the afternoon on July 28. The Arbitrator denied the grievance. The Arbitrator found that the grievant "did not offer any defense of his own" and that the grievant failed "to make a persuasive case(.)" Award at 4. The Arbitrator found that had the grievant been in the M.I.C. area on the afternoon of July 28, as the Union asserted, he would have heard his name being paged. Further, the Arbitrator noted that it would have been unreasonable for the grievant to have spent 4 hours in the M.I.C. area in light of the type of duties performed there. The Arbitrator also found that the grievant occupied the position of "leader" and, therefore, should have been available to employees. The Arbitrator also noted that the grievant had been disciplined twice within the previous 6 months for the same type of offense. III. Positions of the Parties A. Union's Exception The Union claims that the award is deficient because the Arbitrator improperly shifted the burden of proof in a case involving suspension, in violation of Air Force Regulation 40-750. The Union argues that the regulation requires management to prove that misconduct has occurred. According to the Union, the Arbitrator shifted the burden of proof and based his award on the fact that he did not believe the grievant had proved his case. The Union argues that management failed to prove its case. The Union claims that: (1) the grievant was assigned to work in the M.I.C. area on July 28; (2) two employees provided statements that they had seen him in that area; and (3) management failed to look for him there. The Union states that because there are no public address speakers in the M.I.C. area, the grievant would not have heard a page. The Union asserts that since the grievant was working in a different area, his time card was sent to his original work location and was transcribed by hand on a weekly basis. The Union argues, therefore, that the grievant did not punch out his time card at the end of the daily shift. The Union requests that the award be set aside, that the grievant's suspension be removed from his personnel file and that he be given backpay for the period of the suspension. The Union also requests that an award of attorney fees be made to the Union's attorney, and that any other appropriate remedy the Authority wishes to fashion be made. B. Agency's Opposition The Agency argues that the Union's exception constitutes simple disagreement with the Arbitrator's factual determinations, analysis of the evidence, and rationale underlying his conclusions, and does not provide a basis for setting aside the award. IV. Analysis and Conclusions We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. The Union has failed to establish that the award is contrary to any law, rule, or regulation or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases. The Union claims that the Arbitrator shifted the burden of proof from the Agency to the grievant and, thereby, failed to apply properly an Air Force regulation. We conclude that the Arbitrator did not fail to apply properly the standard of proof. The Arbitrator weighed all the evidence presented to him and determined that the Agency proved its case--the Agency established just cause for suspending the grievant due to the latter's absence from work. Therefore, the Union's exception constitutes nothing more than disagreement with the Arbitrator's evaluation of the evidence and his reasoning and conclusions and is an attempt to relitigate this case before the Authority. The exception does not provide a basis for finding the award deficient. See, for example, Carswell Air Force Base and American Federation of Government Employees, Local 1364, 32 FLRA 789 (1988) (exceptions which attempt to relitigate the merits of the case before the Authority and constitute nothingmore than mere disagreement with the Arbitrator's evaluation of the evidence and testimony provide no basis for finding the award deficient). V. Decision The Union's exception is denied.