42:1181(82)AR - - VA Medical Center, Fayetteville, NC and AFGE Local 2080 - - 1991 FLRAdec AR - - v42 p1181
[ v42 p1181 ]
The decision of the Authority follows:
42 FLRA No. 82
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 Jack Clarke filed by the Agency pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
A grievance was filed concerning a written admonishment that was given to the grievant for failing to return to his work station as directed. The Arbitrator found that the grievant was engaged in protected activity at the time of his absence and that the issuance of the admonishment was not for just and sufficient cause. Consequently, the Arbitrator sustained the grievance and directed the Agency to take certain remedial actions.
For the following reasons, we conclude that the Agency has failed to establish that the Arbitrator's award is deficient. Therefore, we will deny the exceptions.
II. Background and Arbitrator's Award
At the time of the incident that led to the issuance of the admonishment, the grievant was serving as the Union vice president and performing the duties of a ward clerk. In this latter capacity, the grievant was assigned to a floating position, meaning that he was assigned to a ward based on the need for clerk coverage.
On April 27, 1990, the grievant informed his supervisor that he would be leaving the ward at 1:00 p.m. to prepare for a meeting with Agency officials that was scheduled for 3:00 p.m. on that same day. After speaking with the Assistant Chief of Medical Administrative Services, the grievant's supervisor advised the grievant that it was necessary for him to return to the ward at 3:00 p.m. The grievant also spoke with the Assistant Chief and was advised of the same need to return at 3:00 p.m. The grievant was, in fact, in a meeting with Agency officials, which meeting commenced at about 3:00 p.m., and failed to return to the ward as directed. On May 1, 1990, the grievant was issued a letter of admonishment on the basis that his failure to return to work constituted insubordination and had a direct adverse impact on patient care.
A grievance was filed challenging the admonishment. The grievance was not resolved and was submitted to arbitration, where the parties framed the issue as follows: "whether the written admonishment given the Grievant was for just and sufficient cause." Award at 2.
The Arbitrator found that issuance of the admonishment was not for just and sufficient cause. In reaching this result, he examined section 7102 of the Statute, and Authority decisions interpreting that section, and found that "if the Grievant's refraining from returning to work at approximately 3:00 p.m. on April 27, 1990 constituted insubordination, that behavior was nonetheless protected by that statutory provision and was therefore immunized from discipline." Id. at 21. The Arbitrator further found no evidence that the grievant's conduct was disrespectful. The Arbitrator also noted that in leaving and remaining away from the work area, the grievant was acting in accordance with a past practice, pursuant to which elected Union officials could attend meetings with management if they merely advised their supervisors of such meetings. However, the Arbitrator declined to pass on the scope of the past practice.
Finally, the Arbitrator concluded that although the grievant's duties as a ward clerk were important to the functioning of the Agency, there was no evidence presented from which the Arbitrator could conclude that the grievant's absence from the ward on April 27, 1990, significantly and adversely affected patient care. The Arbitrator concluded that the grievant's conduct "was not so flagrant or outrageous as to be removed from the protection of 5 U.S.C. Section 7102." Id. at 22. Accordingly, the Arbitrator sustained the grievance and directed the Agency to rescind the written admonishment and to remove any reference to it from the grievant's personnel files.
III. Positions of the Parties
A. The Agency
The Agency excepts to the award on the basis that (1) it is contrary to law, specifically section 7106(a)(2)(A) of the Statute, and (2) the Arbitrator's conclusions and award are not supported by the evidence.
In support of its first exception, the Agency contends that the grievant's failure to return to work as ordered was sufficiently flagrant and outrageous to remove it from the protection of the Statute and, therefore, the Agency was justified in imposing discipline on the grievant under section 7106(a)(2)(A) of the Statute. The Agency argues that although the Arbitrator rejected the applicability of Veterans Administration Medical Center, Birmingham, Alabama and American Federation of Government Employees, Local 2207, 35 FLRA 553 (1990) (VAMC Birmingham) to the facts here, the situations are analogous. In VAMC Birmingham, the Authority upheld an arbitrator's decision denying a grievance imposing a suspension on the basis that the grievant's conduct was insubordinate and outside the protection of section 7102 of the Statute. The Agency contends, citing VAMC Birmingham, that although certain conduct is protected under section 7102 of the Statute, an agency may discipline an employee if such conduct exceeds the bounds of protected activity. Here, the Agency asserts that the grievant's conduct exceeded protected activity because: (1) the grievant's failure to perform certain duties could adversely affect patient care; (2) the grievant was repeatedly advised that other ward clerks would be absent at the time the grievant left the ward, thus necessitating the grievant's services; and (3) other Union officials were available on the afternoon of April 27, 1990.
In support of its second exception, the Agency cites the portions of the award in whic