34:0230(46)AR - NORFOLK NAVAL SHIPYARD and TIDEWATER VIRGINIA FEDERAL EMPLOYEES, METAL TRADES COUNCIL -- 1990 FLRAdec AR



[ v34 p230 ]
34:0230(46)AR
The decision of the Authority follows:


 34 FLRA NO. 46




                    NORFOLK NAVAL SHIPYARD

                             and

             TIDEWATER VIRGINIA FEDERAL EMPLOYEES
                     METAL TRADES COUNCIL

                           0-AR-1568

			   DECISION

     			January 11, 1990

     Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator H. Raymond Cluster. The Arbitrator sustained
a grievance, in part, of an employee who was placed on
unauthorized leave for 1 day and who was also given a 1-day
suspension.

     The Tidewater Virginia Federal Employees Metal Trades
Council, AFL - CIO (the Union) filed exceptions 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 alleges that the Arbitrator's award does
not draw its essence from the negotiated agreement and that the
award is based upon a nonfact. The Norfolk Naval Shipyard (the
Agency) did not file an opposition to the exceptions.

     We conclude that the Union has failed to establish that the
award is contrary to law, rule, regulation, or that it is
deficient on other grounds as set forth in section 7122(a) of the
Statute. Accordingly, we deny the Union's exceptions. 

II. Background and Arbitrator's Award

     The grievant is employed as an electrical worker at the
Agency. On May 13, 1987, the grievant requested 8 hours of annual
leave in order to see a doctor on May 15. Despite heavy
workloads, the grievant's supervisor granted the grievant's
request for annual leave on the condition that the grievant
present a certificate from the doctor on returning to work.

     On May 18, the grievant returned to work and presented a
doctor's certificate to his supervisor. The certificate, however,
contained an illegible signature by the examining doctor, whom
the grievant refused to identify. The supervisor subsequently
revoked approval of the grievant's leave request, placed the
grievant in an unauthorized leave status, and imposed a 1-day
suspension.

     The Union grieved the supervisor's action. The Agency denied
the grievance and the matter was submitted to arbitration.

     The Arbitrator found that the grievant could have requested
sick leave for his medical appointment, in accordance with the
provisions of the parties' collective bargaining agreement,
rather than requesting annual leave. However, since the grievant
requested annual leave, the Arbitrator determined that the
grievant's supervisor had the authority, under the agreement, to
impose the condition that the grievant provide a doctor's
certificate. The Arbitrator found that the grievant agreed to
abide by this condition. When the grievant failed to produce a
legible doctor's certificate, however, the grievant failed to
comply with the agreed-upon condition.

     The Arbitrator found that although disciplinary action was
appropriate, placing the grievant on unauthorized leave and
giving him a 1-day suspension was too severe. Thus, the
Arbitrator sustained the suspension and directed that the 8 hours
of unauthorized leave be charged to sick leave.

III. Union's Exceptions

     The Union's first exception is that the Arbitrator's award
does not draw its essence from the collective bargaining
agreement provisions pertaining to annual and sick leave. The
Union argues that the agreement does not require an employee to
provide a doctor's certificate before or after requesting annual
leave. As to sick leave, the Union claims that the agreement
requires a doctor's certificate only when an employee is
on sick leave for more than 3 days or when the employee
previously has been found to have abused sick leave privileges.
The Union asserts that since the Arbitrator placed the grievant
on paid, approved sick leave status for May 15, 1987, the
grievant was not on unauthorized leave and, therefore, should not
have been given a 1-day suspension.

     The Union's second exception states that the Arbitrator's
award was based on a nonfact. The Union claims that the
Arbitrator improperly relied on the dispute between the grievant
and his supervisor over the medical certificate as the basis for
the disciplinary action when the basis for such action was the
grievant's unauthorized absence.

IV. Analysis and Conclusion

     We conclude that the Union has failed to establish that the
Arbitrator's award is contrary to any law, rule, or regulation or
that the award is deficient on other grounds similar to those
applied by Federal courts in private sector labor relations
cases.

     In order for an award to be found deficient as failing to
draw its essence from the agreement, the party making the
allegation must demonstrate that the award: (1) cannot in any
rational way be derived from the agreement; or (2) is so
unfounded in reason and fact, and so unconnected with the wording
and purpose of the agreement, as to manifest an infidelity to the
obligation of the arbitrator; or (3) evidences a manifest
disregard for the agreement; or (4) does not represent a
plausible interpretation of the agreement. Pension Benefit
Guaranty Corporation and National Treasury Employees Union,
Chapter 211, 32 FLRA  141, 145 (1988).

     In the present case, the Union has failed to demonstrate
that the Arbitrator's denial of the grievance concerning the
1-day suspension was not based upon the collective bargaining
agreement between the parties. On the contrary, the Arbitrator
relied on the collective bargaining agreement to find that the
grievant's supervisor had the authority to establish the
condition of providing a doctor's certificate in approving the
grievant's annual leave request. Therefore, we find that this
exception does not provide a basis for finding the award
deficient.

     The Union's second exception also provides no basis for
finding the award deficient. Where an exception claims that an
arbitrator improperly relied upon a nonfact, the 
asserting party has the burden of proving that the central fact
underlying the award is concededly erroneous, a gross mistake of
fact, and that but for the arbitrator's reliance upon such fact,
a different result would have been reached. U.S. Patent and
Trademark Office and Patent Office Professional Association, 32
FLRA  1168 (1988).

     In this case, the Union has not established that the facts
relied on by the Arbitrator are erroneous or gross mistakes of
fact. Rather, the Union's exception is nothing more than
disagreement with the Arbitrator's findings of fact and does not
provide a basis for finding the award deficient. See American
Federation of Government Employees, Local 85 and Veterans
Administration Medical Center,