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36 FLRA No. 63

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF VETERANS AFFAIRS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3028

(Union)

0-AR-1853

DECISION

August 7, 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 Jonathan S. Monat 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 exception.

The Arbitrator upheld a 3-day suspension of the grievant. For the following reasons, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exception.

II. Background and Arbitrator's Award

The grievant, a purchasing agent in the Agency's Anchorage office, also is a Union steward. The grievant's supervisor observed that on several occasions in May and June 1989, the grievant returned 15 minutes late from his lunch break. The supervisor recommended disciplinary action based on tardiness.

After the grievant was tardy on June 6 and 9, 1989, the grievant and his Union representative met with management. The grievant explained that on those 2 days he was late because he had been stopped by, or met, employees whom he represented on Union business. On July 3, 1989, the grievant was suspended for 3 days. The Agency also deducted 30 minutes of time from the grievant's pay for being Absent Without Leave (AWOL) on June 6 and 9, 1989. A grievance was filed and, when it was not resolved, it was submitted to arbitration.

Arbitrator Monat stated that the issue before him was:

Did the Agency apply an excessive penalty when it suspended the grievant for three (3) days in July 1989?

Award at 3.

Arbitrator Monat first concluded that "neither the Agency nor the grievant's then-supervisor . . . suspended the grievant because of Union activities. Nor were they harassing the grievant because he was [a] shop steward." Id. at 10. Next, Arbitrator Monat found that there was "no question that the grievant was away from his work station on June 6 and 9[.]" Id. Further, Arbitrator Monat found that the grievant failed to notify the Agency that he was on Union business and that although the grievant was given the opportunity to file time sheets showing that he was on Union business, or to identify those employees who contacted him "the grievant chose to do neither." Id. at 11. Arbitrator Monat concluded that as "the grievant did not provide necessary proof of his claim of Union business when it was requested by management[,] . . . the absences of June 6 and 9, 1989, were unexcused and subject to some form of discipline." Id. at 12.

Having concluded that there was cause for discipline, Arbitrator Monat considered the effect of a prior arbitration award by Arbitrator Howard D'Spain, concerning previous AWOL charges, on the Agency's decision to suspend the grievant.⁽¹⁾ The Arbitrator noted the Union's arguments that "the penalty was excessive because management cited a prior disciplinary action which was expunged from the grievant's personnel file[,]" and that "[i]f there [was] no concurrent disciplinary action in the personnel file, the offense charged against the grievant . . . is a first offense." Id. at 9. The Arbitrator also noted the Agency's argument that although one of the AWOL charges (for October 23, 1987) could not be used as a basis for future discipline, the other AWOL charge (for October 27, 1987) "was expunged only from the Official Personnel File on station[,]" and, therefore, "could be used in future discipline." Id. at 6.

According to Arbitrator Monat, Arbitrator D'Spain "ordered the 'grievant's personnel file on station expunged of all references to [the] properly charged AWOL which occurred on October 27, 1987.'" Id. at 12. Additionally, Arbitrator Monat stated:

The Agency has argued there is a distinction between the Official Personnel File and Grievance Files. The distinction which Arbitrator D'Spain draws in his award between the incident of October 23, 1987 and October 27, 1987 seems quite clear. The omission of the statement prohibiting the use of the records of the later in future discipline is intentional. The other files would include, as management has argued, the grievance files per[taining] to the October 27, 1987 grievance and the D'Spain award.

Id. at 13 (citations omitted).

Arbitrator Monat noted that "[t]he grievance file may be maintained for three years after the case has been closed" and that only 10 months had passed between the award of September 23, 1988, and the July 1989 suspension. Id. Arbitrator Monat found, therefore, that as the 10-month period was "well within" guidelines applicable to the retention of records, "the Agency was within its rights to administer discipline at the level of the second offense." Id.

Although Arbitrator Monat concluded that the 3-day suspension did not constitute an excessive penalty, he found that the Agency "may have acted prematurely with respect to the deduction of 30 minutes of time from the grievant's pay for AWOLs of June 6 and 9, 1989." Id. at 14. Accordingly, Arbitrator Monat ordered that the grievant be made whole for the time deducted from his pay for June 6 and 9, 1989.

III. The Union's Exception

The Union asserts that Arbitrator Monat "erroneously interpreted and applied the agency regulation, MP5, Part I Chapter 752." Union's Exception at 1.⁽²⁾ The Union argues that the 3-day suspension should be mitigated to a reprimand and that the grievant should be paid, with interest, for the 3-day suspension.

According to the Union, "MP-5, Part 1 c.(1) says that if a reprimand is withdrawn early from the personnel file, it may not be used after its withdrawal to support future charges nor be considered in connection with any proposed disciplinary action." Id. The Union contends that as the "alleged incident of AWOL on October 27, 1987 was [expunged] from the grievant's official personnel file" by Arbitrator D'Spain, there is "no concurrent disciplinary action to support management[']s escalation of discipline." Id.

IV. Analysis and Conclusion

We conclude that the Union has failed to establish that Arbitrator Monat's award conflicts with Agency regulation MP-5.

We note, as an initial matter, that there appears to be no dispute that the grievant was both disciplined and charged AWOL for the October 27 incident. Arbitrator Monat referenced both the Union's arguments concerning the "prior disciplinary action which was expunged from the grievant's personnel file[,]" and the Agency's arguments concerning the "1987 letter of reprimand and the arbitration." Award at 9, 7. Likewise, the Union excepts to the award on the basis that "if a reprimand is withdrawn early from the personnel file, it may not be used after its withdrawal to support future charges[.]" Exceptions at 1. Consistent with these findings and assertions, we conclude that the AWOL charge for October 27, 1987, was accompanied by a disciplinary action (reprimand). There is, therefore, no basis on which to find that use of records concerning the October 27 incident conflicts with the portion of MP-5, part 1, chapter 752(9)(b) which only precludes the Agency from using "charges of AWOL without concurrent disciplinary actions" to support suspensions. Attachment to Union's Exception (emphasis added).

Arbitrator Monat concluded, based on his interpretation of Arbitrator D'Spain's award and Agency regulations, that the Agency was not prohibited from considering the grievant's prior discipline for the absence without leave on October 27, 1987, in imposing a 3-day suspension. Arbitrator Monat's interpretation is consistent with Arbitrator D'Spain's award, which drew a clear distinction between the charges related to October 23 and those related to October 27. In particular, Arbitrator D'Spain stated that any record of the October 23 incident could "never be used as a basis for future disciplinary action." Attachment to Union's Exception at 9. Nothing in Arbitrator D'Spain's award indicates that he intended a similar preclusion for records pertaining to the October 27 incident.

Further, the Union has not shown that Arbitrator Monat's conclusion that references to the October 27 incident properly could be maintained in official Agency files, other than the grievant's "personnel file on station[,]" is inconsistent with law, rule, or regulation. Award at 12. We note, in this regard, that MP-5, part 1, chapter 751, change 2 provides that a "reprimand" will advise the employee "that a copy of the reprimand . . . will be placed in his personnel folder." Attachment to Union's Exception. The Union has not shown, however, that a reprimand may not be contained in a "personnel folder" other than an employee's personnel file "on station."

The Union has not demonstrated that Arbitrator Monat's award is deficient because it conflicts with Agency regulations. Accordingly, we will deny the Union's exception. See U.S. Department of the Army, Army Reserve Personnel, St. Louis, Missouri and American Federation of Government Employees Local 900, 35 FLRA 1200, 1203-04 (1990).

V. Decision

The Union's exception is denied.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Arbitrator D'Spain's award stated:

RELATING TO OCTOBER 23, 1987

1. For the occurrence on October 23, 1987, the Grievant shall be reimbursed for four (4) hours of back pay.

2. The Grievant's personnel file shall be expunged of any reference to the absence which occurred on October 23, 1987.

3. Any record kept in other locations, of the incident which occurred on October 23, 1987, shall never be used as a basis for future disciplinary action.

RELATING TO OCTOBER 27, 1987

4. For the AWOL which occurred on October 27, 1987, the VA had just cause to deduct four (4) hours of pay from Grievant.

5. Upon receipt of this decision, the Grievant's personnel file on station shall be expunged of all references to this properly charged AWOL which occurred on October 27, 1987.

Attachment to the Union's Exception at 9.

2. It appears, from attachments to the Union's exception, that MP-5, part 1, chapter 752(9)(b) provides as follows:

9. when an employee's past disciplinary record is to be considered as part of the basis for the

proposed suspension, a statement will be included that specifically cites and identifies the previous infractions and penalties, and advises the employee that:

. . . .

b. he or she may make a statement concerning the consideration to be given his past record in determining proper action. (If cited, the previous disciplinary record will not be set forth as a current reason, but will be stated in a paragraph separate and apart from the current reasons. Only disciplinary actions may be cited in the paragraph pertaining to the employee's past record. Counselings, charges of AWOL without concurrent disciplinary actions, and warnings are not disciplinary actions and therefore may not be included in the past record paragraph)[.]

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