34:0745(129)AR - - AFGE Local 1857 and Sacramento Air Logistics Center, McClellan AFB - - 1990 FLRAdec AR - - v34 p745

[ v34 p745 ]
The decision of the Authority follows:

34 FLRA No. 129




LOCAL 1857






February 9, 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 John B. LaRocco filed by the American Federation of Government Employees, Local 1857 (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 Sacramento Air Logistics Center, McClellan Air Force Base (the Activity) filed an opposition to the Union's exception.

The Activity suspended an employee for 1 day for insubordination. The employee grieved the suspension and the Arbitrator denied the grievance. The Union contends that the Arbitrator's award is deficient because it did not account for management's violation of Air Force regulations and the parties' master labor agreement (MLA) which the Union alleged precipitated the insubordination charge.

For the reasons discussed below, we deny the Union's exception.

II. Background and Arbitrator's Award

In November 1987, the Activity issued a notice of proposed reprimand charging the grievant with being absent without leave (AWOL) on October 23, 1987. The grievant was reprimanded on January 19, 1988.

In February 1988, the grievant received notice of a proposed 1-day suspension for being 100 minutes late on January 12, 1988. In determining the measure of discipline for the grievant's lateness, the supervisor took into consideration the previous AWOL offense in October 1987 for which the grievant was given a reprimand. On April 11, 1988, the grievant received the decision letter informing him of the suspension. Although the grievant was to serve the 1-day suspension on April 20, 1988, he "inadvertently failed to serve the suspension." Arbitrator's Award at 1.

The grievant's reprimand for the October AWOL offense was submitted to arbitration. On April 22, 1988, the Activity received the arbitrator's decision which expunged the reprimand from the grievant's record.

On May 12, 1988, the grievant's second-line supervisor called the grievant into his office to serve him with an amended decision letter rescheduling the 1-day suspension. The supervisor "clearly instructed [the g]rievant to return the amended decision letter to him" after reading it and "emphatically directed [the g]rievant to write nothing but his name on the letter" as an acknowledgment that he had received it. Arbitrator's Award at 2.

The grievant informed his supervisor that because the arbitrator's decision in the October AWOL matter had expunged the reprimand from his record, there was no justification for the suspension. The supervisor, who contended before the Arbitrator that he had no knowledge of that arbitration decision, refused to listen to the grievant's explanation. The supervisor also denied the grievant's requests to call the appropriate office to verify his statement and to allow him Union representation.

After the grievant began to "write a disclaimer" on the amended decision, the supervisor again requested that the grievant "refrain from writing any statement on the letter and that he return the letter to [him]." Id. at 2. The grievant refused this request and informed his supervisor that he would comply with his orders if the supervisor would put the orders in writing. When his supervisor failed to do so, the grievant retained the amended decision and the meeting ended.

The Activity suspended the grievant for 1 day because of his "insubordinate defiance of authority" at the May 12, 1988 meeting. Arbitrator's Award at 1. The grievant served the 1-day suspension for tardiness as scheduled. However, the suspension for tardiness was later reduced to a reprimand and the grievant was reimbursed for 1 day's pay. Arbitrator's Award at 2.

The grievant filed a grievance which was submitted to arbitration on the following stipulated issue: "[W]as the one-day suspension of Grievant for just cause, and, if not what should the remedy be." Id. at 1. The Arbitrator denied the grievance. The Arbitrator stated that "employees must 'comply now and grieve later' if they disagree with the supervisor's order or if they sincerely believe that the order violates applicable regulations or the Master Labor Agreement." Arbitrator's Award at 2. The Arbitrator determined that once the supervisor "elected to disregard [the g]rievant's efforts to solve the matter during the May 12, 1988 meeting, [the g]rievant was obligated to obey [his supervisor's] orders." Id. at 3. The Arbitrator concluded that whether the Activity "committed a harmful error or breached [the parties' MLA] are issues which would have been adjudicated if [the g]rievant had obeyed [his supervisor] and initiated a grievance." Id.

III. Positions of the Parties

A. Union's Exception

The Union contends that the Arbitrator's decision "did not account for management's violation of Air Force regulations and the MLA." Union's Exception at 1. The Union points out that Air Force Regulation 40-750, Section A.2.j. defines "harmful error" as: "An error by management in the application of its procedures which, if corrected or alleviated, might have resulted in a different conclusion." Union's Exception at 2 and Attachment 2. The Union notes