11:0010(6)AR - VA Hospital, Fort Howard, MD and Maryland Nurses Association, Fort Howard Chapter -- 1983 FLRAdec AR



[ v11 p10 ]
11:0010(6)AR
The decision of the Authority follows:


 11 FLRA No. 6
 
 VETERANS ADMINISTRATION
 HOSPITAL, FORT HOWARD,
 MARYLAND
 Activity
 
 and
 
 MARYLAND NURSES ASSOCIATION,
 FORT HOWARD CHAPTER
 Union
 
                                            Case No. O-AR-197
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Seymour Strongin filed by the Agency 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 Union did not
 file an opposition.
 
    The dispute in this matter concerns management's refusal to grant the
 grievant emergency annual leave on February 21, 1980, and management's
 charging the grievant with being absent without leave on that date when
 she did not report for work.  A grievance was filed protesting
 management's actions that was submitted to arbitration.
 
    The Arbitrator determined in the circumstances presented that the
 grievant was entitled to have been granted emergency annual leave under
 the leave provisions of the parties' collective bargaining agreement.
 Accordingly, as his award in this respect, the Arbitrator ordered that
 the grievant's record be changed from absent without leave to emergency
 annual leave on the day in question and that the grievant otherwise be
 made whole.  The Arbitrator further observed that under the parties'
 agreement unplanned leave requests were to "be attended in a courteous
 and professional manner." In terms of this case, the Arbitrator found
 that the evidence of the grievant's treatment by her supervisor in
 refusing to grant the grievant's leave request warranted an oral
 admonishment to treat such requests in a courteous and professional
 manner as required by the agreement.  Accordingly, as his award in this
 respect, the Arbitrator ordered the Activity to admonish the grievant's
 supervisor.
 
    The Agency filed an exception to each portion of the Arbitrator's
 award.  In its exception to that portion of the Arbitrator's award
 ordering the admonishment of the grievant's supervisor, the Agency
 contends that the award is contrary to the Statute.  Specifically, the
 Agency maintains that this portion of the award infringes on
 management's right under section 7106(a)(2)(A) /1/ to discipline its
 employees.  However, the Agency's exception provides no basis for
 finding the award deficient.
 
    The Statute specifically provides that the authority of management to
 take disciplinary action under section 7106(a)(2)(A) encompasses only
 "employees," and section 7103(a)(2) expressly excludes a supervisor from
 the definition of "employee" for purposes of the Statute.  See, e.g.,
 American Federation of Government Employees, AFL-CIO, National
 Immigration and Naturalization Service Council and U.S. Department of
 Justice, Immigration and Naturalization Service, 8 FLRA No. 75 (1982),
 at 25;  National Council of Field Labor Locals of the American
 Federation of Government Employees, AFL-CIO and United States Department
 of Labor, 4 FLRA No. 51 (1980), at 4.  Consequently, the the Agency not
 contradicting that the individual to be admonished in accordance with
 the award is a supervisor for purposes of the Statute, the Agency fails
 to establish that the award in ordering the grievant's supervisor
 admonished infringes on management's right under section 7106(a)(2)(A)
 to take disciplinary action against its employees.  Likewise, the Agency
 fails to establish that the award is contrary to any governing law or
 regulation that may be concerned with the right of an agency to
 discipline agency personnel, in general.
 
    In its exception to that portion of the award directing that the
 grievant's record of absence without leave be changed to emergency
 annual leave, the Agency contends that the award is contrary to
 governing law and regulation.  Specifically, the Agency argues that the
 award infringes on management's right under civil service law and
 regulation to prescribe when annual leave may be taken and infringes on
 management's right under section 7106(a)(2)(B) to assign work.
 
    The Agency's exception however provides no basis for finding the
 award deficient.  As has been noted, the Arbitrator essentially found
 that the parties' collective bargaining agreement set forth criteria to
 be observed in determining whether emergency annual leave would be
 granted and concluded in terms of this case that management improperly
 applied the agreement provisions which resulted in the refusal of
 emergency annual leave to the grievant that she otherwise would have
 received.  Consequently, the Arbitrator's award ordering the grievant
 made whole for the unwarranted action of denying her emergency annual
 leave is consistent with applicable law, see American Federation of
 Government Employees, Local 1395 and Department of Health and Human
 Services, Social Security Administration, 10 FLRA No. 5 (1982), at 2,
 and the award has not been shown to be otherwise contrary to governing
 law or regulation, see id. (in which the Authority with respect to an
 award ordering a day of annual leave changed to a day of excused absence
 without charge to leave denied an exception contending the award was
 contrary to governing law and regulation);  Northeastern Program Service
 Center, Office of Program Service Centers, Social Security
 Administration and American Federation of Government Employees, Local
 1760, 7 FLRA No. 120 (1982) (in which the Authority determined that
 nothing in governing law or regulation precluded an arbitrator from
 determining that the denial of leave without pay was unwarranted and
 from ordering the grievant's record changed from absent without leave to
 leave without pay);  Long Beach Naval Shipyard, Long Beach, California
 and International Federation of Professional and Technical Engineers,
 Local 174, AFL-CIO and American Federation of Government Employees,
 Local 2237, AFL-CIO and Federal Employees Metal Trades Council, Long
 Beach, California, 7 FLRA No. 53 (1981) (in which the Authority
 determined that a proposal which under the stated conditions would
 require the granting of administrative leave was not prohibited by
 governing regulation and was within the duty to bargain).
 
    Accordingly, the Agency's exceptions are denied.  Issued, Washington,
 D.C., January 7, 1983
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III, Member
                                       Leon B. Applewhaite, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
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