40:0088(11)AR - - Air Force, HQ OK City Air Logistics Center, Tinker AFB, OK and AFGE Local 916 - - 1991 FLRAdec AR - - v40 p88
[ v40 p88 ]
The decision of the Authority follows:
40 FLRA No. 11
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 Russell C. Neas 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 filed an opposition to the Union's exceptions.
The Arbitrator denied the grievance concerning the Agency's placing of the grievant on enforced leave. For the following reasons, we conclude that the Arbitrator's award is not deficient and we will, therefore, deny the Union's exceptions.
II Background and Arbitrator's Award
The grievant is an equipment cleaner at the Agency's facility. On or about December 18, 1989, the grievant was "loaned" to "Aircraft" from "Engines" where he was then employed. Award at 4. As part of a physical examination given to the grievant at that time, the grievant underwent a blood test which revealed that he "had a liver problem which was attributed to toxic chemical exposure on the job." Id. On January 11, 1990, the grievant was restricted to a work environment free from the risk of exposure to chemicals or chemical fumes.
Aircraft was unwilling to retain the grievant with his job restrictions and sent him back to Engines on January 22. On January 23 the grievant's second-level supervisor gave the grievant a notice of enforced leave for the 14-day period of January 23 to February 5. The notice stated, in part: "My decision to place you on enforced leave is based on the medical opinion that you are not ready, willing, and able to perform the duties of your position. . . . Efforts to locate other duties within these medical restrictions have not been successful; however, these efforts will continue. You may be directed to report to duty, if such duties are located." Id.
After completing his 14 days of enforced leave, the grievant returned to work on February 6. On February 7 the grievant was issued another notice of enforced leave for another 14-day period. Before that period expired, the grievant personally located a warehouse job where he could work with his medical restrictions. The grievant informed his second-level supervisor of the availability of that job. The supervisor confirmed the grievant's claim with the warehouse supervisor and then told the grievant to report back to work.
A grievance was filed concerning the two periods of enforced leave. The grievance was not resolved and was submitted to arbitration.
As the parties were unable to agree upon the issue, the Arbitrator framed the issue as follows: "Did the Agency have just cause to place [the grievant] on enforced leave? If not, what shall be the remedy?" Id. at 6.
Before the Arbitrator, the Union argued that the enforced leave was "in effect a suspension" and "therefore the Agency [had] the burden of proof" in accordance with the precedent and guidelines of the Merit Systems Protection Board (MSPB). Id. The Union contended that the Agency had failed to afford the grievant his rights in connection with the "suspension" by failing to provide him with a notice of proposed suspension or the opportunity to respond before effectively suspending him from his duties. Finally, the Union claimed that there was work available which could have been performed by the grievant, but that the Agency did not make a reasonable effort to locate such a position for the grievant.
With respect to the availability of work, the Arbitrator examined the obligations of the Agency against the requirements of AFR 40-716(C1). The Arbitrator noted that although "[t]here may have been available work which could have been done by [the grievant] within his restrictions," the credible "testimony eliminated any doubt that the Agency's resources were not properly utilized in the job search effort." Id. at 7. The Arbitrator considered the grievant's testimony that when he was first
placed on enforced leave, he had advised his second-level supervisor that there was work available in the B-1 Tool Crib. However, the Arbitrator credited the second-level supervisor's assertion that the grievant had not said anything to her about the B-1 Tool Crib.
The Arbitrator concluded that it was shown "[b]y a preponderance of the evidence . . . that the Agency acted responsibly by protecting [the grievant] from hazardous exposure by placing him on enforced leave when reasonable job searches were unsuccessful. There is no evidence to support the various Union allegations that the Agency violated the [c]ontract or applicable Air Force [r]egulations." Id. at 8. Accordingly, the Arbitrator concluded that the Agency "had just cause" for placing the grievant on enforced leave and the Arbitrator denied the grievance. Id.
III. Positions of the Parties
A. The Union
The Union contends that the Arbitrator's award is contrary to law because the Arbitrator did not place the "burden of proof on the Agency" in accordance with the decision of the U.S. Court of Appeals for the Federal Circuit in Pittman v. MSPB, 832 F.2d 598 (Fed. Cir. 1987) (Pittman). Exceptions at 8.
The Union also maintains that the Arbitrator's award is deficient because it is contrary to regulation. Specifically, the Union argues that because the Arbitrator concluded that there may have been available work for the grievant and because the Agency conceded that it did not conduct a base-wide search for work that could be performed by the grievant, the Arbitrator's award is contrary to "AFR 40-716 paragraph 2(d) where it state[d] 'When the employee's disability or capacity [sic] is of a temporary nature he may be detailed . . . to available work he can do.'" Id.
B. The Agency
The Agency maintains that Pittman is inapposite because in Pittman the court held that enforced leave of more than 14 days is a constructive suspension and, therefore, an adverse action within the MSPB's jurisdiction. The Agency notes that the periods of enforced leave in this case were not for more than 14 days and, as such, "even if Pittman mandated a specific order of
presenting evidence . . ., the [A]rbitrator here would not have been bound to follow such a procedure, for the rules relating to adverse actions simply do not apply to actions not taken under 5 USC § 7512." Opposition at 2-3.
The Agency argues that, in any event, the Arbitrator's statement of the issue and his award make it clear that the Arbitrator placed the burden of proof on the Agency in this case. The Agency asserts, moreover, that an arbitrator has considerable discretion in the manner in which he or she conducts an arbitration hearing and is not bound to place the burden of proof in any particular manner.
IV. Analysis and Conclusions
We conclude that the award is not contrary to law or regulation and we will deny the Union's exceptions.
We reject the Union's claim that Pittman required the Arbitrator in this case to place the burden of proof on the Agency. In Pittman an employee with medical restrictions was placed on enforced leave for an indefinite period of time. The court concluded that such periods of enforced leave of more than 14 days, even those ordered because the agency believes the employee cannot perform work because of medical restrictions, are to be considered disciplinary adverse actions covered by 5 U.S.C. § 7512 and within the jurisdiction of the MSPB.
In this case, the grievant was placed on enforced leave for two separate periods, each of a duration of 14 days or less. In Cornelius v. Nutt, 472 U.S. 648 (1985), the U.S. Supreme Court held that if a disciplinary action covered by 5 U.S.C. § 7512 is grieved under a negotiated grievance procedure, an arbitrator must apply the same substantive standards as would have been applied if the matter had been appealed to the MSPB. The Authority has uniformly rejected arguments that these standards must be applied to resolutions by arbitrators of lesser disciplinary actions that are not covered by 5 U.S.C. § 7512. For example, Department of the Air Force, Griffiss Air Force Base and American Federation of Government Employees, Local 2612, 34 FLRA 712 (1990).
This case involves periods of enforced leave of 14 days or less. Accordingly, we find, contrary to the Union's contention, that the award is not contrary to law because the Arbitrator assertedly failed to apply the standard of review which the Union contends is required. Furthermore,
were we to conclude that the two periods of enforced leave constitute an adverse action covered by 5 U.S.C. § 7512 because they are tantamount to one suspension of more than 14 days, the Authority would be without jurisdiction under section 7122(a) of the Statute to review the Union's exceptions. See, for example, National Treasury Employees Union, Chapter 202 and Department of the Treasury, Financial Management Service, Headquarters, Office, 32 FLRA 1075 (1988) (Authority had no jurisdiction to consider agency exceptions to award that related to the removal of the grievant that was covered by 5 U.S.C. § 7512).
Moreover, nothing in the award establishes that the burden of proof was placed upon the Union. Indeed, the Arbitrator concluded that a preponderance of the evidence demonstrated that the Agency had just cause in placing the grievant on enforced leave. Moreover, unless a specific burden of proof is required, an arbitrator may establish and apply whatever burden the arbitrator considers appropriate. U.S. Department of the Treasury, Internal Revenue Service, Omaha, Nebraska District and National Treasury Employees Union, 36 FLRA 453, 464-65 (1990). In the absence of any evidence that the Arbitrator was obligated to apply a specific burden of proof, the Union's claim that the Arbitrator incorrectly placed the burden of proof on the Union provides no basis for finding the award deficient.
We also find that, contrary to the Union's contention, the award is consistent with AFR 40-716(C1). Section 2.d. of that regulation provides that when an employee's disability or incapacity is of a temporary nature the employee "may be