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47 FLRA No. 56

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE AIR FORCE

AIR FORCE LOGISTICS COMMAND

HILL AIR FORCE BASE, UTAH

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1592

(Union)

0-AR-2367

_____

DECISION

May 13, 1993

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Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Daniel M. Winograd 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 overturned the suspension of the grievant for insubordination because he found that she had not been insubordinate. However, he ordered the grievant reprimanded because he found that, by her actions, she was discourteous and failed to perform assigned work in a timely fashion.

We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the Union's exception.

II. Background and Arbitrator's Award

The Agency charged that the grievant had engaged in acts of insubordination to her supervisor on three occasions on May 18 and 19, 1992, and suspended the grievant for 3 days. The grievant filed a grievance over the suspension. The grievance was not resolved and was submitted to arbitration on the issue of whether the suspension for insubordination was for just cause.

The Arbitrator noted that the offense of insubordination has been defined by the U.S. Court of Appeals for the Federal Circuit as a willful and intentional refusal to obey an authorized order of a superior, which order the superior is entitled to have obeyed. Award at 10 (citing Phillips v. GSA, 878 F.2d 370 (Fed. Cir. 1989)). The Arbitrator determined that at no time during the specified occasions did the grievant refuse to follow an order of her supervisor. He found that the grievant was less than fully cooperative and helpful and that she acted in a manner calculated to cause inconvenience to her supervisor, but he concluded that she was not guilty of insubordination. Consequently, he ruled that she should not have been suspended. However, he also ruled that, by her actions on the specified occasions, the grievant was guilty of two offenses set forth in Air Force Regulation (AFR) 40-750. He found that she was guilty of discourteous conduct and a failure to perform assigned work in a timely fashion, for which he determined that a reprimand was an appropriate penalty for these offenses under AFR 40-750.

Accordingly, as the award, the Arbitrator sustained the grievance, in part. He ordered the grievant made whole for the pay and benefits that she lost as a result of the unjustified suspension. He further ordered that all records be amended to reflect a reprimand of the grievant for discourteous conduct and for a failure to perform assigned work in a timely fashion.

III. Exception

The Union contends that the award is deficient because the Arbitrator sustained discipline against the grievant based on grounds different from the charge relied on by the Agency in suspending the grievant for 3 days. The Union asserts that, by ordering the grievant reprimanded for discourteous conduct and failing to perform assigned work in a timely fashion when she was charged with insubordination, the award violates 5 U.S.C. §§ 7501-7504 and the grievant's constitutional right to due process of law.

The Union maintains that if this were a serious adverse action case under 5 U.S.C. § 7512 before the Merit Systems Protection Board (MSPB), the outcome would not be in doubt. The Union notes that both the MSPB and the Federal Circuit have clearly stated that a disciplinary action against an employee may not be sustained on the basis of a charge that could have been brought against the employee, but was not. As support, the Union cites Johnston v. GPO, 5 MSPR 354 (1981) and Burroughs v. Department of the Army, 918 F.2d 170 (Fed. Cir. 1990). The Union also notes that Federal Personnel Manual (FPM) chapter 752, subchapter 2 precludes agencies from disciplining employees for reasons not stated in notices of proposed action. The Union argues that the result should be the same in cases such as this one involving suspensions of 14 days or less because the result is grounded on fundamental considerations of due process.

IV. Analysis and Conclusions

We find that, in contending that the award is deficient, the Union misconstrues the award by focusing on the grievant's suspension by the Agency. The Arbitrator has not ordered the grievant suspended. Rather, the Arbitrator vacated the 3-day suspension of the grievant and ordered the grievant made whole for the pay and benefits that she lost as a result of the unjustified suspension. Accordingly, the question we must resolve is whether the Union establishes that the award ordering a reprimand of the grievant is deficient. We conclude that the Union provides no basis for finding the award deficient.

We find no basis for finding that the award is contrary to 5 U.S.C. §§ 7501-7504. By their own terms, these provisions apply only to suspensions of 14 days or less. They do not apply to reprimands. Because the grievant's suspension was vacated by the Arbitrator and the grievant was made whole, we reject the Union's reliance on the procedural protections of sections 7501-7504 in contending that the reprimand ordered by the grievant is contrary to law. We similarly reject the Union's reliance on decisions of the MSPB and the Federal Circuit and FPM chapter 752. As the Union concedes, the cited decisions dealt with adverse actions covered by section 7512. By its own terms, section 7512 does not apply to reprimands. Similarly, FPM chapter 752, subchapter 2 addresses only suspensions for 14 days or less and does not apply to reprimands. Accordingly, the cited decisions and FPM chapter 752 provide no basis on which to find the award deficient.

We also find no basis for finding that the award violates the grievant's constitutional right to due process of law. As we recognized in U.S. Department of Veterans Affairs, National Memorial Cemetery of the Pacific and International Association of Machinists and Aerospace Workers, Hawaii Federal Lodge 1998, 45 FLRA 1164 (1992) (Hawaii Federal Lodge), in determining whether the 5-day suspension of the grievant deprived the grievant of a property interest protected by the Constitution, property interests are not created by the Constitution; they are created and defined by existing rules or understandings that stem from an independent source, such as law. 45 FLRA at 1175 (quoting Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) and Board of Regents v. Roth, 408 U.S. 564 (1972)). In Hawaii Federal Lodge, we noted that the Supreme Court had decided in Arnett v. Kennedy, 416 U.S. 134 (1974), that because employees as defined in 5 U.S.C. § 7511 were guaranteed continued employment under 5 U.S.C. § 7513 absent such cause as will promote the efficiency of the service, such employees had a legitimate claim of entitlement that constituted a property interest under the Fifth Amendment. We also noted that the MSPB had decided that these employees have a constitutionally protected property interest in their employment and a constitutional right to due process in actions covered by section 7512. We further noted that similar to section 7513, section 7503 provides that employees as defined in section 7501 may not be suspended for 14 days or less except for such cause as will promote the efficiency of the service. Because such employees cannot be suspended for 14 days or less absent cause, we found that such employees have a constitutionally protected property interest in their employment without such suspensions.

In this case, as already noted, the provisions of sections 7503 and 7513 do not apply and cannot support a finding that the grievant has a constitutionally protected property interest in her employment without reprimands. Presumably, both AFR 40-750, cited by the Arbitrator, and the parties' collective bargaining agreement address reprimands. However, the Union has not provided copies of either the regulation or the agreement and has not cited any provisions of either the regulation or the agreement. Without any reference to either the regulation or the agreement, there is no basis on which to find any constitutionally protected property interest or to determine what process was due the grievant. Accordingly, we will deny the Union's exception.

In denying the exception, we note that reprimands of employees are governed by agency regulations and/or collective bargaining agreements, not by statute. In this case, the Arbitrator reviewed the conduct of the grievant for which the grievant was disciplined and based on his factual determinations relating to that conduct determined that although the conduct did not constitute insubordination, the conduct did warrant a reprimand of the grievant. The Union in its exception has not disputed that by her conduct, the grievant was discourteous and failed to timely perform work or that a reprimand was an appropriate penalty for such misconduct. Instead, the Union has challenged the fairness of the process by which the Arbitrator ordered the reprimand of the grievant when the grievant had not had the opportunity to reply to such charges. The Union has not asserted that the Arbitrator's order of a reprimand was contrary to provisions of AFR 40-750 or provisions of the parties' collective bargaining agreement that govern whether employees can be reprimanded under such circumstances. As such, no basis is provided for finding the award deficient.

V. Decision

The Union's exception is denied.

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

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