39:1103(93)AR - - Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia, Federal Metal Trades Council - - 1991 FLRAdec AR - - v39 p1103

[ v39 p1103 ]
The decision of the Authority follows:

39 FLRA No. 93













March 12, 1991

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 Richard M. Upson. The award resolved two grievances. The first grievance concerned whether the grievant was improperly denied 4 hours of official time to conduct Union business on August 25, 1989. The Arbitrator found that the Agency's action violated the parties' agreement and, therefore, he granted this grievance. No exceptions were taken to this aspect of the Arbitrator's award and we will not address it further.

The second grievance concerned whether the grievant was improperly issued a letter of reprimand and denied 4 hours of pay because of his alleged unauthorized absence from work for 4 hours on August 30, 1989. The Arbitrator denied this grievance, finding that there was just cause for the Agency's action. The Union filed an exception to this part of the award 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 Agency did not file an opposition to the Union's exception.

We conclude that the Union has not established that the award is deficient under section 7122 of the Statute. Accordingly, we deny the Union's exception.

II. Background and Arbitrator's Award

The issue before the Arbitrator was whether the grievant was improperly issued a letter of reprimand by his general foreman on October 25, 1989 for "'disobedience to a constituted authority on August 30, 1989, first offense' and not paid for four (4) hours on August 30, 1989[.]" Award at 1.

On August 30, 1989, the grievant requested and was granted 4 hours of official time to conduct Union business. Sometime after noon of the same day, the grievant phoned his supervisor to request an additional 4 hours. The supervisor was on leave at that time. After the supervisor returned, she denied the grievant's request, directed him to return to work, and suggested that the grievant see the general foreman. Later on August 30, 1989, the general foreman directed the grievant's supervisor "to place [the grievant] on 'Z' leave (unauthorized leave-no pay/benefits)." Id. at 4.

"[A]fter appropriate pre-action investigation, discussions, etc.[, the general foreman] issued the October 25, 1989 Letter of Reprimand, the subject of the grievance." Id. The letter of reprimand stated that it was "issued as a penalty for [the grievant's] disobedience to a constituted authority on 30 August 1989, first offense." Exception, Joint Exhibit 2, Attachment dated October 25, 1989. The letter stated that the time that the grievant was away from work on the afternoon of August 30, 1989, "has been charged to absence without authority ["Z" leave]." Id.

The Arbitrator noted that "Article 31 [of the parties' agreement] requires that disciplinary action will be taken only for just cause." Id. at 7. The Arbitrator also noted that neither the parties' agreement nor the Agency's Instruction pertaining to "Disciplinary Actions," which he found was "covered under the provisions of Article 2 of the Labor Agreement," defined "just cause." Id.

Upon consideration of the evidence and the testimony of the witnesses, the Arbitrator concluded that the "appropriate actions required by Articles 31 and 33 of the parties' agreement were followed; i.e., pre-action investigation, Steps 2 and 3, timeliness." Id. at 3 and 7. In considering the Agency's pre-action investigation, the Arbitrator further determined that the "judge" of that investigation "obtain[ed] substantial evidence or proof that the employee was guilty as charged[.]" Id. at 8. Further, the Arbitrator stated that although he was concerned about the Agency's failure to indicate why informal disciplinary action was not considered in this case, he could not "convince [himself] to overturn the [Agency's] decision" to issue the letter of reprimand to the grievant for his unauthorized absence for 4 hours on August 30, 1989. Id. at 9. The Arbitrator "encourage[d] the [Agency] to review this case in light of [his] comments and consider the voluntary rescinding of the [l]etter of [r]eprimand, to be replaced by an [o]ral [a]dmonition." Id. As his award, the Arbitrator denied the grievance, noting his recommendation to the Agency.

III. Exception

The Union contends that the Arbitrator's award is in "direct violation" of Federal Personnel Manual (FPM) chapter 751, subchapter 1-3 b., Enforced Leave, which states:

b. Disciplinary situations. In a personal, disciplinary-type situation, the placing of an employee on leave without his consent constitutes a suspension. An agency must observe the appropriate procedures of part 752 when using enforced leave as a disciplinary action, as part of a disciplinary action, or as a prelude to a possible disciplinary action, such as pending investigation or inquiry.

(Emphasis supplied by the Union.)(*)

The Union contends that the grievant was placed on "Z" leave for 4 hours without the grievant's consent and prior to a pre-action investigation and that, therefore, the "letter of reprimand was issued in violation of FPM [chapter 751]." Exception at 1.

IV. Analysis and Conclusions

We conclude that the Union has failed to establish that the 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 Uni