34:0286(52)AR - DOJ, FEDERAL BUREAU OF PRISONS, FCI, PETERSBURG, VIRGINIA and AFGE, COUNCIL OF PRISON LOCALS, LOCAL 2052 -- 1990 FLRAdec AR

 34 FLRA NO. 52



                  U.S. DEPARTMENT OF JUSTICE
                   FEDERAL BUREAU OF PRISONS
               FEDERAL CORRECTIONAL INSTITUTION
                     PETERSBURG, VIRGINIA

                              and

          AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
                   COUNCIL OF PRISON LOCALS
                          LOCAL 2052

                           0-AR-1614

			   DECISION

     			January 12, 1990

     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 William S. Hart. The Arbitrator denied the
grievance over the 5-day suspension of the grievant.

     The American Federation of Government Employees, Council of
Prison Locals, Local 2052 (the Union) filed an exception 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 Department of Justice, Federal Bureau
of Prisons, Federal Correctional Institution, Petersburg,
Virginia (the Activity) did not file an opposition to the Union's
exception.

     We conclude that, contraryto its assertion, the Union fails
to establish that the award is contrary to 5 U.S.C. 7503 or 5
C.F.R. 752.203 or that the award is deficient on any other ground
set forth in section 7122(a) of the Statute. Accordingly, we will
deny the exception. 

II. Background

     On August 18, 1987, the grievant met with his supervisor to
review the grievant's log. When the grievant's supervisor
criticized the grievant's performance, the grievant expressed his
anger verbally and stated that his supervisor was a racist. The
grievant refused to sign an evaluation form and stated that "he
was going home sick." Arbitrator's Award at 2. A short time
later, the supervisor saw the grievant with his work files and
reminded him of his responsibility for file accountability that
evening. The grievant did not respond and departed the area. The
grievant also was responsible for a unit team meeting scheduled
for 5:30 p.m. that day. Shortly before the meeting, the
grievant's supervisor learned that the grievant had left work at
approximately 4:00 p.m. As a result, the meeting for which the
grievant was responsible had to be rescheduled.

     The Activity suspended the grievant for 5 days for being
disrespectful to his supervisor, failing to obey his supervisor's
instructions, and being absent without leave. A grievance filed
over the suspension was submitted to arbitration.

III. The Arbitrator's Award

     The Arbitrator found that the grievant exhibited
disrespectful conduct toward his supervisor, failed to carry out
instructions, and was absent without leave.

     The Arbitrator rejected the Union's contention that the
Activity violated 5 U.S.C. 7503 and 5 C.F.R. 752.203 by depriving
the grievant of his right to review the material on which the
Activity relied in proposing that the grievant be suspended for 5
days. The Arbitrator found that the grievant did not avail
himself of this right. The Arbitrator noted that the letter of
proposed disciplinary action notified the grievant (1) of his
right to review these materials; (2) that the records would be
made available to him; (3) of his right to make a response to the
proposed action; and (4) that he would be permitted into the
institution to review the materials.

     The Arbitrator found that the grievant's only response to
the notice was a telephone call to the Activity on September 15,
1987. During this call, the grievant stated that there was no
truth to the charges against him. The Arbitrator found that
during the telephone call, the grievant had an
opportunity to ask for the file on the proposed action, but did
not do so. The Arbitrator stated that there was no evidence that
the grievant attempted to make arrangements to obtain the file
and concluded that "(i)t is not actionable, or even responsible,
for an employee to fail to act in his own interest and on his own
behalf and then claim that he was denied his rights. If rights
are to be claimed, then they must be acted upon." Arbitrator's
Award at 13.

     Accordingly, the Arbitrator denied the grievance.

IV. Exception

     The Union contends that the award is deficient because it is
contrary to 5 U.S.C. 7503 and 5 C.F.R. 752.203. The Union notes
that under these provisions, an agency proposing to discipline an
employee must: (1) inform the employee of the right to review the
material which is relied on in proposing the action; and (2)
provide the employee an opportunity to respond. The Union claims
that the grievant testified that he made several requests for
this material, but that the material was not provided by the
Activity. The Union contends that the Arbitrator completely
ignored the grievant's testimony and other evidence of the
grievant's requests. The Union also claims that (1) the grievant
was not provided a reasonable opportunity in which to respond to
the charges; and (2) the Arbitrator erroneously concluded that
the grievant was guilty of all the offenses with which he was
charged.

V. Analysis and Conclusions

     We conclude that the Union fails to establish that the award
is contrary to 5 U.S.C. 7503 or 5 C.F.R. 752.203 or that the
award is deficient on any other ground set forth in section
7122(a) of the Statute.

     The Arbitrator made a finding of fact, based on the evidence
presented, that the grievant did not avail himself of his rights
under 5 U.S.C. 7503 and 5 C.F.R. 752.203. The Union's contentions
that the Arbitrator's finding is erroneous constitute nothing
more than disagreement with the Arbitrator's findings of fact and
evaluation of the evidence and testimony. Likewise, the Union's
contention that the Arbitrator erroneously concluded that the
grievant was guilty of all the charges constitutes nothing more
than disagreement with the Arbitrator's factual findings that the
grievant (1) exhibited disrespectful conduct toward his 
supervisor, (2) failed to carry out instructions, and (3) was
absent without leave.

     Disagreement with an arbitrator's findings of fact and
evaluation of evidence and testimony provides no basis for
finding an award deficient. See, for example, Air Force Logistics
Command, Tinker Air Force Base and American Federation of
Government Employees, Local 916, 33 FLRA  96 (1988) (exceptions
which merely disagree with the arbitrator's findings of fact and
the arbitrator's evaluation of evidence and testimony provide no
basis for finding an award deficient). Accordingly, we will deny
the exception.

VI. Decision

     The Union's exception is denied.