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The decision of the Authority follows:
43 FLRA No. 113
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
AIR FORCE LOGISTICS COMMAND
TINKER AIR FORCE BASE, OKLAHOMA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
February 5, l992
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 James P. O'Grady 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 did not file an opposition to the Union's exceptions.
A grievance was filed over the Agency's determination to charge the grievant 2 hours absence without official leave (AWOL) on April 10, 1989, and the Agency's subsequent 10-day suspension of the grievant for her fourth leave-related offense. The Arbitrator denied the grievance, finding that both the Agency's AWOL determination and 10-day suspension were for just cause.
Based on the following, we conclude that the case should be remanded to the parties for resubmission to the Arbitrator.
II. Background and Arbitrator's Award
The events leading to the grievant's AWOL and 10-day suspension occurred on April 10, 1989, when the grievant did not report to duty, as directed, at 6:45 a.m. The grievant had been directed to report at that time after completing a 5-day suspension for a leave-related offense. At about 8:20 a.m. on April 10, the grievant telephoned her supervisor and requested leave to attend a friend's funeral. The supervisor denied her request because: 1) the grievant's 5-day suspension letter ordered her to report for work at 6:45 a.m.; 2) the supervisor was authorized under the applicable Agency regulation to take into consideration the grievant's past history of repeated absences for situations that were completely within her control and that had been supported by vague reasons; and 3) the supervisor had informed the grievant that he intended to train her "sometime" upon her return from her 5-day suspension. Award at 3. The supervisor ordered the grievant to report to work. The grievant reported to work at 8:45 a.m.; the supervisor charged her 2 hours AWOL. Based on the 2 hours AWOL and the grievant's past disciplinary record for similar attendance-related deficiencies, the Agency subsequently suspended the grievant for 10 days. A grievance was filed over both the charge of AWOL and the suspension. The grievance was not resolved and was submitted to arbitration.
The issue before the Arbitrator was whether the 2 hours AWOL on April 10, 1989, and the subsequent 10-day suspension were for just cause. Initially, the Arbitrator addressed the standard of proof that should be applied to this grievance. The Agency had argued to the Arbitrator that Air Force Regulation (AFR) 40-630, Civilian Personnel Absence and Leave, dated February 1, 1988, states that "the preponderance of evidence is the standard by which the charges must be proven." Award at 7. The Arbitrator rejected the Agency's assertion that AFR 40-630 established a standard of proof or that the parties had agreed to preponderance of the evidence as the standard of proof. The Arbitrator decided that in the absence of a specified standard of proof agreed to by the parties, the standard of proof required is sufficient evidence to convince the Arbitrator of the party's position.
Next, the Arbitrator noted that an Authority administrative law judge had determined in Wright-Patterson Air Force Base, Case No. 5-CA-80255, that the Agency was required to rescind AFR 40-630, dated February 1, 1988, until the Agency had met its bargaining obligations with the
Union.(1) He also noted that, in response to that decision, the Agency had issued a directive stating that the Agency could not implement portions of the 1988 version of AFR 40-630 that were in conflict with the parties' Master Labor Agreement. Further, the Arbitrator indicated that the Union had not cited any specific examples of conflict between the 1988 version of AFR 40-630 and a 1971 version relied on by the Union. Therefore, the Arbitrator determined that the 1988 version of AFR 40-630 remained in force until the Authority ruled on the Agency's appeal of the administrative law judge's decision, to the extent that the regulation did not conflict with the parties' Master Labor Agreement.(2)
On the merits, the Arbitrator concluded that both the AWOL and the suspension were issued for just cause. The Arbitrator noted that although the Agency had not proven the charges by a preponderance of the evidence, the Agency had submitted sufficient evidence to convince him that the grievant "should have known the possible consequences of her attendance actions." Award at 9.
With regard to the supervisor's stated reasons for imposing the AWOL, the Arbitrator found that although the supervisor had the right to schedule the grievant for training, it was not imperative that the training take place on the morning of April 10. However, the Arbitrator sustained the supervisor's action based on the supervisor's other two reasons for denying leave. In response to the Union's argument that the supervisor's action had been arbitrary and that the 1971 version of AFR 40-630 requires that "[a]rbitrary decisions to deny leave will not be made[,]" the Arbitrator concluded that he could not find "that the Supervisor was arbitrary by ignoring relevant information in the Grievant's total record." Award at 13-14. The Arbitrator agreed with the Union that the parties' agreement allows the employees up to 2 hours from the beginning of their shift to call in and request leave. Nonetheless, he concluded that, according to AFR 40-630, "the final determination as to the scheduling and amount of annual leave granted at any specific time is made by the supervisor . . . . " and that, therefore, "the employee is at risk when calling within the two hour period that the supervisor will not approve the request." Id. at 15.
The Arbitrator also found the 10-day suspension to be reasonable in view of the fact that the grievant had previously received a 5-day suspension, a 1-day suspension, and a reprimand for attendance-related deficiencies. The Arbitrator concluded that the grievant's 10-day suspension "falls within the range of a third offense" in the Agency's table of penalties and that, therefore, it was "not outside the bounds of reasonableness for a fourth offense." Id. at 10. Consequently, the Arbitrator denied the grievance.
III. First Exception
A. Position of the Union
The Union contends that the award is deficient because the Arbitrator exceeded his authority by disregarding the decision in Wright-Patterson Air Force Base, which required that the Agency rescind the 1988 version of AFR 40-630 until such time as it had been negotiated with the Union. The Union argues that by finding that the 1988 version of AFR 40-630 remained in force until the Authority adjudicated the Agency's appeal of the administrative law judge's decision, the Arbitrator exceeded his authority by attempting to overrule an Authority decision.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the Arbitrator erred by relying on the 1988 version of AFR 40-630.
The issue before the Arbitrator was whether the 2 hours AWOL on April 10, 1989, and the subsequent 10-day suspension were for just cause. The Arbitrator specifically found that, based on his evaluation of the evidence, the Agency's actions were for just cause. The Arbitrator did not base his determination of just cause on the 1988 version of AFR 40-630. Indeed, he considered the Union's contention that an earlier version of that regulation prohibited arbitrary decisions to deny leave and expressly concluded that the supervisor's action had not been arbitrary. He also agreed with the Union that employees were permitted up to 2 hours from the beginning of their shift to request leave, a right the Union contends is contained in the 1971 version of AFR 40-630, but he ultimately concluded that "the employee is at risk when calling within the two hour period that the supervisor will not approve the request." Award at 15.
To the extent that the Arbitrator relied on the 1988 version of AFR 40-630 to reach this conclusion, we are unable to determine from the record whether the 1971 version of the regulation also grants the supervisor the right to make the "final determination as to the scheduling and amount of annual leave granted at any specific time . . . ." Id. We note, however, that the Arbitrator quotes Article 23 of the parties' agreement as stating: "The use of annual leave is the right of the employee subject to the approval of the supervisor." Id. at 14-15. Accordingly, as the Arbitrator did not rely on the 1988 version of AFR 40-630 in reaching any findings that were material to his award, we conclude that the award is not deficient on the basis that the Arbitrator determined that the 1988 version of AFR 40-630 remained in effect despite the administrative law judge's decision.
IV. Second Exception
A. Position of the Union
The Union contends that the award is deficient because the Arbitrator misapplied AFR 40-750. The Union asserts that AFR 40-750, Section C, paragraph 12b states: "Management must be prepared to support the following by a preponderance of evidence." Exceptions at 4 (emphasis in original). The Union observes that the Arbitrator states that he "does not concur that the Employer has proven the charges by a preponderance of the evidence[.]" Award at 16. The Union then presents specific arguments as to why the supervisor did not have "justifiable reasoning" for denying the grievant's leave request based on any of his asserted reasons for doing so. Exceptions at 7.
The Union also contends that in imposing the 10-day suspension, the deciding official did not take into consideration all relevant factors in the selection of the penalty, as required by AFR 40-750. The Union examines the written justification submitted by the deciding official regarding each of the factors that must be addressed in determining a penalty. The Union argues that the deciding official did not properly consider and balance all of the relevant factors, such as the nature and seriousness of the offense and mitigating circumstances.
B. Analysis and Conclusions
We conclude that the award is not sufficiently clear to enable us to determine whether the Arbitrator misapplied AFR 40-750 when he determined that there was no standard of proof that governed the matter in dispute. Accordingly, we will remand this case to the parties for resubmission to the Arbitrator to determine whether there is a standard of proof that should be applied to the Agency's actions, and, if so, to clarify the award by applying the appropriate standard to any action taken pursuant to AFR 40-750.
The Authority will find that an award is deficient under section 7122(a)(1) of the Statute when the award conflicts with a governing agency rule or regulation. U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 192 (1990). However, only an arbitration award that conflicts with a rule or regulation that governs the matter in dispute will be found deficient for this reason. Id. Further, a provision that has become part of a collective bargaining agreement takes precedence over agency rules and regulations with respect to matters to which they both apply. Id. at 194.
In this case, the Union contends that AFR 40-750 contains a standard of proof that the Arbitrator was required to apply in determining whether the Agency properly supported the actions it took against the grievant. The Union argues that the governing standard is "preponderance of the evidence" and that the award is deficient because the Arbitrator denied the grievance despite his statement that he did not agree "that the Employer has proven the charges by a preponderance of the evidence." Exceptions at 4, quoting Award at 16.
We are unable to determine whether AFR 40-750 contains a standard of proof that governs the matter in dispute. We recognize that the Arbitrator expressly found that there was no specified standard of proof that must be applied. However, the Agency had cited AFR 40-630, rather than AFR 40-750, when it argued to the Arbitrator that the standard was preponderance of the evidence, and there is no basis on which to conclude that the Arbitrator examined AFR 40-750 to resolve this issue.
It is also unclear whether the Arbitrator in fact failed to apply the appropriate standard. In this regard, we note the following. AFR 40-750 is entitled Civilian Personnel Discipline and Adverse Action. Award at 9. A copy of that regulation has not been provided to us, and thus we do not know the intended scope of the application of the standard of proof allegedly contained in the regulation. Nonetheless, we do not view the Union as arguing that the regulation applies other than to the imposition of discipline. As the Authority consistently has held, the Federal Personnel Manual states that "[r]ecording an absence as AWOL is not a disciplinary action." See, for example, U.S. Department of Veterans Affairs, Medical Center, St. Albans, New York and American Federation of Government Employees, Local 1988, 38 FLRA 1447, 1449 (1991); U.S. Department of Health and Human Services, Social Security Administration, Kansas City, Missouri District and American Federation of Government Employees, Local 1336, 37 FLRA 924, 927 (1991). Therefore, to the extent that the Arbitrator applied a different standard of proof when assessing the validity of the AWOL portion of the grievance, it has not been shown that the Arbitrator was incorrect or that he misapplied AFR 40-750 in so doing. In the absence of a specific standard of proof that has been agreed to by the parties or that is otherwise required, an arbitrator has authority to establish whatever standard he or she considers appropriate and the award will not be found deficient on that basis. U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, Local 3615, 39 FLRA 407, 412 (1991).
To the extent that the Arbitrator was assessing the imposition of the 10-day suspension, however, see Award at 9, or discussing whether the Agency had proven "the charges," see Award at 16, the standard of proof contained in AFR 40-750 may be relevant to a determination of whether the award conflicts with that regulation. Accordingly, we will remand this case to the parties so that they may request a finding from the Arbitrator as to whether there is a standard of proof in AFR 40-750 that governs the disciplinary action taken against the grievant, and, if so, whether that standard was met, both as to the offense and the selection of the penalty.
V. Third Exception
A. Position of the Union
The Union also argues that "at the very least the ten day suspension should be mitigated to no more than a five day suspension." Exceptions at 3. The Union asserts that after the Arbitrator issued his award, another arbitrator directed that the grievant's previous 5-day suspension be removed from her file. The Union contends that because "the progressive discipline scheme has been interrupted" and the 10-day suspension at issue herein became the grievant's third, rather than her fourth, offense, she should have received no more than the 5-day suspension imposed for the prior offense.
B. Analysis and Conclusion
We find that the Union has failed to establish that the award is deficient because the penalty did not conform to the Agency's progressive disciplinary scheme. The Union essentially argues that in view of the grievant's disciplinary record, which, after the other arbitrator's award, consisted of a 1-day suspension and a reprimand for attendance-related deficiencies, the 10-day suspension is too severe a penalty for a third offense. The Union points out that the Agency had imposed only a 5-day suspension for a similar leave-related offense. We do not agree that the award is deficient in this respect. First, we note that in concluding that the discipline was reasonable under the Agency's table of penalties for a fourth offense, the Arbitrator expressly found that "the Ten-Day Suspension falls within the range of a third offense." Award at 10. Thus, the Arbitrator has already ruled on the issue of whether the Agency could impose the 10-day suspension in this case. The Union's exception thus provides no basis for finding the award deficient. See, for example, Veterans Administration Medical Center, Birmingham, Alabama, and American Federation of Government Employees, Local 2207, 35 FLRA 553, 559 (1990).
Further, arbitration awards are not subject to review on the basis of evidence that has come into existence only since the arbitration hearing. U.S. Small Business Administration, Atlanta, Georgia and American Federation of Government Employees, Local 3906, 37 FLRA 137, 142 (1990). Accordingly, the fact that the prior discipline was removed from the grievant's file after the issuance of the Arbitrator's award is not a sufficient basis for reviewing the propriety of the Arbitrator's award. Id.
In view of the fact that this case is being remanded to the parties for resubmission to the Arbitrator on other issues, however, the Arbitrator may, if he chooses, revisit the issue of the reasonableness of the penalty in light of the new evidence.
The award is remanded to the parties for resubmission to the Arbitrator in accordance with this decision.
(If blank, the decision does not have footnotes.)
1. The administrative law judge's decision was adopted by the Authority in U.S. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 887 (1990).
2. In view of these findings by the Arbitrator, we will presume that whenever the Arbitrator referred to AFR 40-630, he was referring to the 1988 version of that regulation.