38:0337(35)AR - - Air Force, Air Force Logistics Command, Hill AFB, UT and AFGE Local 1592 - - 1990 FLRAdec AR - - v38 p337
[ v38 p337 ]
The decision of the Authority follows:
38 FLRA No. 35
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
AIR FORCE LOGISTICS COMMAND
HILL AIR FORCE BASE, UTAH
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
November 23, 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 Daniel M. Winograd. A grievance was filed after the Agency charged that the grievant was absent without leave (AWOL). The Arbitrator denied the grievance.
The Union filed exceptions to the award 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 exceptions.
For the reasons which follow, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
On January 23, 1990, the grievant's daughter complained of nausea and fever, and the grievant determined that she could not send her daughter to school or to her normal day care home. The grievant telephoned a co-worker who informed the grievant "that the workload . . . did not appear unusual." Award at 4. The grievant "indicated that she would attempt to locate a babysitter for her daughter, and she would try to be at work as soon as possible." Id. Later, the grievant telephoned her section chief and informed him of her daughter's illness. The grievant said that she could not find a babysitter and she requested emergency annual leave. The section chief informed the grievant "that she was needed at work, and she should come to work as soon as she could find a babysitter." Id. at 5. According to the Arbitrator, the section chief told the grievant "if you value your job, you won't let your personal problems interfere with your work." Id. The grievant did not report for duty that day, and she was charged as being AWOL.
Subsequently, a grievance was filed concerning the AWOL charge. When the grievance remained unresolved, it was submitted to arbitration.
The issue before the Arbitrator was:
Did the [Agency] properly charge grievant as absent without leave (AWOL) on January 23, 1990? If not, what is the appropriate remedy?
Id. at 2.
The Arbitrator found that it was "undisputed that grievant followed proper procedures in requesting annual leave" and that the Agency "could deny her request if her services were required . . . ." Id. at 5. However, the Arbitrator also found that there was "substantial dispute whether grievant's services were required." Id. The Arbitrator found that an Agency regulation, AFR 40-360, establishes "the appropriate standard" for determining whether the grievant was improperly denied emergency annual leave. Id. at 8. AFR 40-360 provides, in relevant part, that:
Normally, denial of a leave request . . . needs to be based on the necessity for the employee's services. Leave must not be denied . . . for arbitrary or capricious reasons. . . .
Id. at 9 (emphasis added). The Arbitrator stated that "[i]f a rational basis exists, the decision [to deny leave] cannot be held arbitrary or capricious." Id. After evaluating the evidence before him, the Arbitrator found that "[a]lthough it appears in hindsight that grievant's absence did not cause substantial problems with production, management made its decision without the benefit of that hindsight, and it cannot be held to have acted in an arbitrary or capricious manner." Id. at 10. Consequently, the Arbitrator denied the grievance.
III. The Union's Exceptions
The Union asserts that the award is deficient because it violates 5 U.S.C. § 7701(c)(2)(A) and the parties' collective bargaining agreement. The Union maintains that the grievant was never expressly denied annual leave, and that the section chief's testimony "indicates that there was no just cause to deny an 'emergency annual' [leave] request based on workload[.]" Exceptions at 3.
IV. Analysis and Conclusions
We conclude that the Union has failed to demonstrate that the award violates law. The harmful-error rule of 5 U.S.C. § 7701(c) applies to an arbitrator's resolution of grievances over performance-based and other major adverse actions covered by 5 U.S.C. §§ 4303 and 7512, respectively. The harmful-error rule does not apply to other actions, including the allegedly wrongful denial of annual leave in this case. See U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 35 FLRA 1267, 1269-70 (1990).
The Union also asserts, without explanation, that the award "violates" the parties' collective bargaining agreement. Exceptions at 2. We construe the Union's exception as a claim that the award is deficient because the award fails to draw its essence from the agreement.
In order to show that the award fails to draw its essence from the agreement, the Union must establish that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason or fact, so unconnected with the wording and purposes of the agreement as to "manifest an infidelity to the obligation of the arbitrator"; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of the Air Force, Griffiss Air Force Base, Rome, New York and American Federation of Government Employees, Local 2612, 36 FLRA 338, 341 (1990). These tests make it clear that an arbitrator's award will not be found to fail to draw its essence from the agreement based on claims that the arbitrator misinterpreted the agreement. Id. at 342.
The Arbitrator found, based on an Agency regulation, testimony at the arbitration hearing, and other evidence, that the Agency did not arbitrarily and capriciously deny the grievant's request for emergency annual leave. In so finding, the Arbitrator rejected the same arguments the Union makes in its exceptions. In our view, the Union's exception that the award "violates" the parties' agreement merely constitutes disagreement with the Arbitrator's findings and is an attempt to relitigate the matter. Consequently, this exception provides no basis for finding the award deficient. See U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Washington, D.C. and American Federation of Government Employees, Local 3407, 35 FLRA 1016, 1019 (199