49:0529(46)AR - - AFGE, Local 1336 and HHS, SSA, Mid-America Program Service Center, Kansas City, MO - - 1994 FLRAdec AR - - v49 p529

[ v49 p529 ]
The decision of the Authority follows:

49 FLRA No. 46
















March 17, 1994


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on exceptions to an award of Arbitrator Charles J. Marino 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 alleging that the Agency violated the parties' collective bargaining agreement when it suspended the grievant for excessive absenteeism. For the following reasons, we conclude that the Union's exceptions fail to establish that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant, a file clerk at the Agency's Mid-America Program Service Center, filed a grievance claiming that the Agency violated, among other things, Articles 3 and 23 of the parties' collective bargaining agreement when it suspended her for 3 days.(1) When the grievance was not resolved, it was submitted to Arbitration and the Arbitrator framed the issue as follows:

Did management violate Article[s] 3, 23, 24, and 31 of the parties' National Agreement when it issued the suspension . . . to [the grievant] and if so, what is the proper remedy?

Award at 2.

Before the Arbitrator, the Agency argued that the grievant repeatedly failed to adhere to its rules for requesting and obtaining approval of leave and, as a result, incurred absence without leave (AWOL) charges. The Agency contended that it had warned the grievant orally and in writing, counselled her, and imposed prior discipline in an effort to correct the grievant's conduct. The Agency asserted that the grievant's failure to respond to the Agency's corrective actions resulted in her 3-day suspension.

The Union urged the Arbitrator to overturn the suspension "because of . . . procedural errors that were harmful to the grievant." Id. at 3. In addition to the alleged violations of the parties' collective bargaining agreement, the Union claimed that the grievant's suspension violated certain Agency personnel regulations and the Federal Personnel Manual. Although not quoted in the award, the Arbitrator noted that the cited portions of the parties' agreement and regulations "in a nutshell, speak to the use of material that may be more than one (1) year old . . . ." Id. at 2-3.

The Arbitrator determined that under Authority precedent, the harmful error standard set forth at 5 C.F.R. § 1201.56(c)(3), "'need not be applied to . . . suspensions of 14 days or less.'"(2) Id. at 4. However, the Arbitrator also determined that even if the standard applied, he was unable to "give much weight to the [Union's] objections." Id. Moreover, according to the Arbitrator, the Agency had an obligation to review the grievant's overall work record and past performance when deciding "how to respond to a rules violation." Id. The Arbitrator found that, in addition to issuing a reprimand, the Agency warned the grievant that appropriate disciplinary action would be taken if she incurred further AWOL charges and informed her of the procedures she was expected to follow for requesting leave. Thus, the Arbitrator concluded that based on the evidence presented, the Agency had just cause to discipline the grievant and, that "the manager did act responsible (sic) within the parameter of the National Agreement[.]" Id. at 5. Consequently, the Arbitrator denied the grievance.

III. Positions of the Parties

The Union argues that the award fails to draw its essence from the parties' collective bargaining agreement and is contrary to Agency regulations. In this regard, the Union contends that Article 23, Section 4, of the agreement specifies that a reprimand will be made part of an employee's personnel file for up to 1 year. The Union further contends that "HEW Personnel, SSA TS. No. g378 (11-16-79) Employee Records and Files Maintained By Operating Offices, Chapter S293, Subchapter 1 Exhibit VI at paragraph 12"(3) provides that the retention period for a reprimand is "6 months after the date of the decision." Exceptions at 2. The Union alleges that the award is deficient because the Arbitrator disregarded the parties' agreement and the Agency's regulation when he upheld the grievant's suspension, which was partly based on a reprimand that was more than 1 year old.

The Agency argues that the Union's exceptions constitute disagreement with the Arbitrator's interpretation of the parties' collective bargaining agreement and, as such, are an attempt to relitigate the merits of the case before the Authority. The Agency claims that the exceptions provide no basis for finding the award deficient.

IV. Analysis and Conclusions

At the outset, we reject the Union's claim that the award conflicts with an Agency regulation. As noted earlier, the Union did not provide a copy of the referenced regulation. Moreover, the Union does not assert, and we have no other basis on which to conclude, that the cited Agency regulation governs the matter. Consequently, the Union has not established that the award is deficient because it conflicts with a governing Agency regulation. See 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, 194-95 (1990).

Further, we reject the Union's contention that the award fails to draw its essence from the parties' agreement. To demonstrate that an award fails to draw its essence from the parties' collec