American Federation of Government Employees, Local 2206 (Union) and Department of Health and Human Services, Social Security Administration, Southeastern Program Service Center (Activity) (Authority decision, September 18, 1981)

Final FLRA decision. This order concerns exceptions to an arbitration award under 5 U.S.C. § 7122. Under 5 U.S.C. § 7123(a)(1), such orders are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116; this decision does not state that it involves one.

Plain-English summary

A Social Security employee was charged forty five minutes of absence without leave. An arbitrator resolved the grievance against her after considering leave authority and the governing agreement. The union filed exceptions to the award. The Authority found no basis to set it aside and denied the exceptions.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; arbitration award upheld.
• Key point: The union did not establish a legal or contractual defect in the AWOL award.

Full text (FLRA public release)

[ v06 p568 ]

06:0568(103)AR

The decision of the Authority follows:

6 FLRA No. 103

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2206
Union

and

DEPARTMENT OF HEALTH AND
HUMAN SERVICES, SOCIAL
SECURITY ADMINISTRATION,
SOUTHEASTERN PROGRAM SERVICE CENTER
Activity

Case No. O-AR-180

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR GEORGE V. EYRAUD, JR., FILED BY THE UNION UNDER SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
U.S.C. 7122(A)) (THE STATUTE).

ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE
WHEN THE GRIEVANT WAS CHARGED 45 MINUTES ABSENCE WITHOUT LEAVE (AWOL) BY
HER MODULE MANAGER. A GRIEVANCE WAS FILED OVER THE AWOL CHARGE AND THE
MATTER WAS ULTIMATELY SUBMITTED TO ARBITRATION.

THE ARBITRATOR STATED THE ISSUES BEFORE HIM AS FOLLOWS:

1. DID THE EMPLOYER FOLLOW PROPER PROCEDURES INCLUDING THE PERSONNEL
   GUIDE FOR

SUPERVISORS, FLEXI-TIME HANDBOOK, AND THE MASTER AGREEMENT IN
CHARGING GRIEVANT WITH 45

MINUTES AWOL FOR HER ABSENCE FROM 10:15 UNTIL 10:55 A.M. ON MAY 16,
1980?

2. DID GRIEVANT HAVE REASON TO BELIEVE THAT (AN EMPLOYEE DEVELOPMENT
   AND TRAINING SECTION

SPECIALIST) WAS HER SUPERVISOR WITH LEAVE APPROVING AUTHORITY AND
THAT (THE SPECIALIST) HAD

THE AUTHORITY TO ALLOW HERE TO MAKE UP HER FORTY MINUTE ABSENCE BY
WORKING FROM 3:55

P.M. UNTIL 4:35 P.M. ON MAY 16, 1980?

3. DID THE ADDITIONAL TIME THAT GRIEVANT WORKED AFTER HER TOUR OF
   DUTY ENDED AT 3:55

P.M. ON MAY 16, 1980, CONSTITUTE OVERTIME AS DEFINED BY THE MASTER
AGREEMENT?

IN THE OPINION ACCOMPANYING HIS AWARD THE ARBITRATOR DISCUSSED
VARIOUS TESTIMONY AND EVIDENCE AND, AS HIS AWARD, DENIED THE GRIEVANCE,
MAKING THE FOLLOWING FINDINGS AND CONCLUSIONS:

1. MANAGEMENT DID FOLLOW PROPER PROCEDURES IN CHARGING GRIEVANT WITH
   45 MINUTES AWOL FOR

HER ABSENCE FROM 10:15 A.M. UNTIL 10:55 A.M. ON MAY 16, 1980.

2. GRIEVANT COULD NOT HAVE REASONABLY BELIEVED THAT (THE EMPLOYEE
   DEVELOPMENT AND TRAINING

SECTION SPECIALIST) WAS HER SUPERVISOR AND THAT (THE SPECIALIST) HAD
THE AUTHORITY TO ALLOW

HER TO MAKE UP HER FORTY MINUTE ABSENCE BY WORKING FROM 3:55 P.M.
UNTIL 4:35 P.M. ON MAY 16,

1980.

3. THE ADDITIONAL TIME THAT GRIEVANT WORKED AFTER HER TOUR OF DUTY
   ENDED AT 3:55 P.M. ON

MAY 16, 1980, DID NOT CONSTITUTE OVERTIME AS DEFINED BY THE MASTER
AGREEMENT.

THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
7122(A) OF THE STATUTE /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR PART 2425). THE ACTIVITY FILED AN OPPOSITION. /2/

IN ITS EXCEPTIONS, THE UNION CONTENDS THE AWARD IS CONTRARY TO 5
U.S.C. 2301(B)(3) AND 2302(B)(11) /3/ AND THAT "THE FACTS UNDERLYING THE
ARBITRATOR'S DECISION ARE CONCEDEDLY ERRONEOUS AND, IN EFFECT, A GROSS
MISTAKE OF RELEVANT FACTS BUT FOR WHICH A DIFFERENT RESULT WOULD HAVE
BEEN REACHED." IN SUPPORT OF THESE EXCEPTIONS THE UNION MAKES EXTENSIVE
REFERENCES TO THE FACTS OF THE CASE, VARIOUS REGULATIONS, AND EVIDENCE
AND TESTIMONY BEFORE THE ARBITRATOR IN THE CASE.

THE UNION'S EXCEPTIONS PROVIDE NO BASIS FOR FINDING THE AWARD
DEFICIENT. THE UNION HAS NOT SHOWN HOW THE ARBITRATOR'S AWARD FINDING
THAT THE ACTIVITY HAD PROPERLY CHARGED THE GRIEVANT AWOL FOR HER ABSENCE
ON THE DAY IN QUESTION IS IN ANY MANNER CONTRARY TO THE CITED SECTIONS
OF TITLE 5 OF THE UNITED STATES CODE. IT IS CLEAR FROM A FULL
EXAMINATION OF THE UNION'S EXCEPTIONS THAT THE UNION IS IN EFFECT
DISAGREEING WITH THE ARBITRATOR'S FINDINGS OF FACT AND WITH HIS
REASONING AND CONCLUSIONS IN ARRIVING AT HIS AWARD, AND IS ATTEMPTING TO
RELITIGATE THE MERITS OF THE GRIEVANCE BEFORE THE AUTHORITY. SUCH
ASSERTIONS PROVIDE NO BASIS FOR FINDING AN AWARD DEFICIENT. DEPARTMENT
OF THE AIR FORCE, CIVILIAN PERSONNEL BRANCH, CARSWELL AIR FORCE BASE,
TEXAS AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1364, 5
FLRA NO. 7(1981); NATIONAL AERONAUTICS AND SPACE ADMINISTRATION AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2284, 3 FLRA NO.
35(1980). THEREFORE, THE UNION'S EXCEPTIONS PROVIDE NO BASIS FOR
FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF
THE AUTHORITY'S RULES AND REGULATIONS.

FOR THE FOREGOING REASONS, THE UNION'S EXCEPTIONS ARE DENIED.
ISSUED, WASHINGTON, D.C., SEPTEMBER 18, 1981

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES: ---------------

/1/ 5 U.S.C. 7122(A) PROVIDES:

(A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
AUTHORITY AN EXCEPTION

TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
AWARD RELATING TO A

MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE). IF UPON REVIEW
THE AUTHORITY FINDS THAT

THE AWARD IS DEFICIENT--

(1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE OR REGULATION;

OR

(2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
PRIVATE SECTOR

LABOR-MANAGEMENT RELATIONS;

THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
CONCERNING THE AWARD AS IT

CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
REGULATIONS.

/2/ IN ITS OPPOSITION, THE AGENCY CONTENDS IN PART THAT THE UNION'S
EXCEPTIONS ARE PROCEDURALLY DEFICIENT BECAUSE A COPY OF THE EXCEPTIONS
WAS NOT TIMELY SERVED ON THE AGENCY. HOWEVER, ANY DEFICIENCY IN THAT
REGARD WAS CORRECTED BY THE UNION AND RESULTED IN NO PREJUDICE TO THE
AGENCY. THEREFORE, THIS MATTER IS PROPERLY BEFORE THE AUTHORITY.

/3/ 5 U.S.C. 2301(B)(3) PROVIDES:

(3) EQUAL PAY SHOULD BE PROVIDED FOR WORK OF EQUAL VALUE, WITH
APPROPRIATE CONSIDERATION OF

BOTH NATIONAL AND LOCAL RATES PAID BY EMPLOYERS IN THE PRIVATE
SECTOR, AND APPROPRIATE

INCENTIVES AND RECOGNITION SHOULD BE PROVIDED FOR EXCELLENCE IN
PERFORMANCE.

5 U.S.C. 2302(B)(11) PROVIDES:

(B) ANY EMPLOYEE WHO HAS AUTHORITY TO TAKE, DIRECT OTHERS TO TAKE,
RECOMMEND, OR APPROVE

ANY PERSONNEL ACTION, SHALL NOT, WITH RESPECT TO SUCH AUTHORITY--

(11) TAKE OR FAIL TO TAKE ANY OTHER PERSONNEL ACTION IF THE TAKING OF
OR FAILURE TO TAKE

SUCH ACTION VIOLATES ANY LAW, RULE, OR REGULATION IMPLEMENTING, OR
DIRECTLY CONCERNING, THE

MERIT SYSTEM PRINCIPLES CONTAINED IN SECTION 2301 OF THIS TITLE.