40:1044(93)AR - - Treasury, Mint, Philadelphia, PA and AFGE Local 1023 - - 1991 FLRAdec AR - - v40 p1044
[ v40 p1044 ]
The decision of the Authority follows:
40 FLRA No. 93
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 Louis E. Seltzer 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 did not file an opposition to the Union's exceptions.
The grievant was absent from work for 5 days due to illness. Because the grievant assertedly had not complied with the procedures for requesting sick leave, the Agency did not approve his sick leave request and charged him with 5 days of absence without leave (AWOL). The Arbitrator concluded that 5 days of AWOL was excessive and that 4 days of AWOL was appropriate.
We conclude that the Union fails to establish that the award is deficient and we will deny the exceptions.
II. Background and Arbitrator's Award
On Monday morning, October 30, 1989, the grievant began phoning his department to advise that he would not be at work due to illness. After 30 minutes without reaching his department and because of his illness, he gave a friend instructions and had her phone his department. He advised his friend to phone his immediate supervisor and, if the supervisor could not be reached, to speak either to his general foreman or to the time and attendance clerk. The time and attendance clerk answered the phone call from the grievant's friend. The time and attendance clerk advised her that the grievant's supervisor was not available, but that another supervisor was available. The grievant's friend declined to speak to the other supervisor and advised the clerk that the grievant was home sick and requested sick leave. The grievant's friend did not leave a telephone number with the clerk at which the grievant could be reached.
When the grievant returned to work on Monday, November 6, his sick leave request was not approved, and he was charged with 5 days of AWOL. The Agency claimed that the grievant had not complied with the Agency's call-in procedure because, when his friend failed to reach the grievant's supervisor, she did not leave a message with another supervisor and did not provide a telephone number at which the grievant could be reached by his supervisor and because the grievant failed to call back during the week of his illness. The grievant filed a grievance over the AWOL charge. The grievance was not resolved and was submitted to arbitration.
The Arbitrator concluded that the grievant failed to meet the specified requirements for requesting and obtaining approval for his emergency sick leave. The Arbitrator determined that the parties' collective bargaining agreement and the call-in procedure require communication with a supervisor that includes providing a telephone number at which the employee can be reached. The Arbitrator found that it was undisputed that the grievant's friend did not communicate with a supervisor and did not provide a telephone number at which the grievant could be reached. The Arbitrator refused to excuse the failure to provide a telephone number on the basis that the Agency had the grievant's telephone number available. The Arbitrator ruled that the Agency is not obligated to rectify an employee's failure to meet the requirements of the call-in procedure. The Arbitrator further found that the failure of the grievant's friend was compounded by the grievant's failure to call in during the week of his illness and obtain approval for his leave and to state how long he would be out.
In summary, the Arbitrator held that the grievant knew the procedure, but did not comply. However, because there was evidence that it was not uncommon for employees to fail to leave a telephone number where they could be reached by their supervisors, the Arbitrator found that the 5-day AWOL charge was excessive and that a 4-day AWOL charge was appropriate. Accordingly, the Arbitrator reduced the charge of AWOL to 4 days and directed that 1 day be charged to sick leave.
III. The Union's Exceptions
The Union contends that the award is contrary to law, rule, and regulation and fails to draw its essence from the collective bargaining agreement because nothing in law, rule, regulation, or the agreement justifies the Arbitrator's conclusion that the grievant failed to meet the specified requirements for requesting and obtaining approval for his sick leave. The Union argues that the grievant clearly and fully complied with all points of the call-in procedure as it has been consistently interpreted at the Agency.
IV. Analysis and Conclusions
We conclude that the Union fails to establish that the award is contrary to any law, rule, or regulation or fails to draw its essence from the parties' collective bargaining agreement.
The Union provides no basis for finding that the award fails to draw its essence from the collective bargaining agreement. In order for an award to be found deficient on this basis, it must be established that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement. For example, United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). These tests and the private sector cases from which they are derived make it clear that an arbitrator's award will not be found to fail to draw its essence from the agreement merely because a party believes that the arbitrator misinterpreted the agreement. Id. The question of the interpretation of the collective bargaining agreement is a question solely for the arbitrator because it is the arbitrator's construction of the agreement for which the parties bargained. Id. at 576.
The Arbitrator's conclusion that the grievant failed to meet the specified requirements of the parties' collective bargaining agreement constituted his interpretation and application of the agreement. The Union fails to show that the Arbitrator's interpretation is irrational, implausible, or unfounded and provides no basis for finding the award deficient as failing to draw its essence from the collective bargaining agreement under any of the tests recognized by the Authority. See id. Instead, the exception constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement. As such, the exception provides no basis for finding the award deficient. See id.
We also find that the Union fails to establish that the award is contrary to law, rule, or regulation. Although the Union contends that the award is contrary to law, no law is cited and no support is otherwise provided. To the extent that the Union is claiming that the Agency's call-in procedure constitutes a rule or regulation, we find no basis for concluding that the award is deficient. The Arbitrator determined that the call-in procedure requires communication with a supervisor that includes providing a telephone number at which the employee can be reached, and the Union fails to establish otherwise. Furthermore, to the extent that the Union is arguing that the Arbitrator erred in failing to find that the grievant complied with the established past practice of the call-in procedure, this argument also provides no basis for finding the award deficient. The United States Air Force, Air Logistics Command, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, AFL-CIO, 28 FLRA 343 (1987) (contention that the arbitrator erred in not finding the grievant's actions in accordance with established past practice provided no basis for finding the award deficient).
Accordingly, we will deny the exceptions.
The Union's exceptions are denied.
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