[ v41 p1149 ]
The decision of the Authority follows:
41 FLRA No. 90
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Bruce R. Boals 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 Rules and Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance disputing a 2-day suspension of an employee for unauthorized absence. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant, a carpenter and Union steward, was suspended for 2 days for unauthorized absence. A grievance disputing the suspension was filed and submitted to arbitration. The Arbitrator framed the issue as follows:
Did the Agency violate the Contract by invoking a 2-day suspension on the grievant for alleged AWOL/unauthorized annual leave? If so, what is the proper remedy?
Award at 2.
During the morning of January 11, 1990, the grievant sought 4 hours of annual leave for that afternoon to resolve a family problem. After the grievant was unable to contact his immediate or second-level supervisor for permission to take the leave, the grievant informed a secretary that he wanted to take 4 hours of annual leave and signed a time record recording the leave. While the grievant was signing the time record, he was informed that an interview for a position he was seeking was scheduled for 2 p.m. that day. The grievant rescheduled the interview for 12 noon, went to the interview, and then went home for the rest of the day. Because of the grievant's absence, a work order "had to be denied after having been approved[.]" Id. at 4.
Although the Arbitrator stated that it was "understandable that [the grievant] may not have taken all the appropriate steps to request his 4-hour annual leave[,]" the Arbitrator found that the grievant's "services were really needed on the afternoon of his absence." Id. at 8. Further, noting that the grievant "had signed himself off the job prior to communicating about and participating in the interview[,]" and that "[t]he timing of the interview was at the grievant's volition[,]" the Arbitrator rejected a claim that the grievant could not be charged with absence without leave (AWOL) for the time spent in the job interview. Id. at 9.
The Arbitrator concluded the grievant "was in error in not devoting sufficient time and effort in the making of his request for annual leave[,]" and that the 2-day suspension was appropriate. Id. The Arbitrator stated that although he believed that a reprimand would have been a more appropriate penalty, his "belief [did] not justify the substitution of his judgment for that of Agency management." Id. The Arbitrator also stated that the Agency's "past practice of issuing reprimands [did] not limit the Agency to the lower sanction." Id. Accordingly, the Arbitrator denied the grievance.
III. The Union's Exceptions
The Union asserts that the Arbitrator's award is contrary to law, rule and regulation. According to the Union, the Agency's Table of Penalties in Chapter 751, Army Regulation (AR) 690-700, and past practice provide that "a Letter of Reprimand is the only appropriate discipline in this case." Exceptions at 1.
The Union also argues that the Arbitrator should have found that the grievant could not be charged AWOL for the 2 hours the grievant was involved in the job interview. According to the Union, the past practice at the Agency was to allow employees to attend such interviews "without charge of leave of any kind." Id.
Finally, the Union asserts that the "discipline effected or the level of discipline effected . . . would not have been taken but for [the grievant's] protected activity; that is, his union representation and, specifically, his representation of minorities." Id. at 2 (emphasis omitted).
IV. The Agency's Opposition
The Agency contends that the Union's exceptions do not establish that the award is deficient. The Agency asserts, in this regard, that the 2-day suspension is within the range of penalties that can be imposed under AR 690-700 for the incident involved in this case. The Agency also asserts that the Union's claim that the grievant was disciplined in reprisal for Union activities constitutes mere disagreement with the Arbitrator's evaluation of the evidence and an attempt to relitigate the merits of the case before the Authority.
V. Analysis and Conclusions
We reject the Union's claim that the Arbitrator's award is contrary to law, rule or regulation. Although the Union cites AR 690-700, chapter 751, the Union did not provide us with a copy of the regulation or the portion thereof with which the award allegedly conflicts. Except for the Union's allegation regarding alleged reprisal for the grievant's Union activities, which is discussed below, the Union cites no other law with which the award allegedly conflicts and none is apparent to us.
We reject also the Union's claim that the award is deficient because the Agency's practice is to allow employees to attend job interviews without requiring them to take leave. The Arbitrator specifically rejected this argument and this exception constitutes nothing more than disagreement with the Arbitrator's evaluation of the evidence, as well as his reasoning and conclusions. As such, this exception provides no basis for finding the award deficient. See, for example, U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, 39 FLRA 1103, 1107 (1991).
Finally, we reject the Union's assertion that the award is deficient because it sustains discipline issued in reprisal for the grievant's Union activities. We note, first, that in the absence of a stipulation by the parties, an arbitrator's formulation of the issue is accorded substantial deference. See, for example, U.S. Department of Transportation, Federal Aviation Administration, Decatur ATCT and National Air Traffic Controllers Association, 39 FLRA 1051, 1053 (1991) (FAA). There is no assertion or indication in the record that the parties stipulated the issue to be resolved in arbitration. The issue, as formulated and resolved by the Arbitrator, encompassed only alleged contractual violations. Moreover, even if the issue encompassed the alleged reprisal, the Arbitrator noted the Union's argument that the grievant "had been systematically harassed on the job because of his Union activities," and concluded that "[n]othing [could] be found in the record to justify distu[r]bance of the Agency action[.]" Award at 6, 9.
We conclude that the Union's assertion that the disputed suspension was motivated by union animus constitutes mere disagreement with the Arbitrator's formulation of the issue and with his findings and conclusions. Consequently, the exception provides no basis for finding the award deficient. See FAA, 39 FLRA at 1053-54.
The Union has not demonstrated that the award is deficient on any of the grounds set forth in section 7122 of the Statute. Accordingly, we will deny the Union's exceptions.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)