41:0485(46)AR - - Treasury, Customs Service, Houston, TX and NTEU - - 1991 FLRAdec AR - - v41 p485



[ v41 p485 ]
41:0485(46)AR
The decision of the Authority follows:


41 FLRA No. 46

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

CUSTOMS SERVICE

HOUSTON, TEXAS

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

(Union)

0-AR-2018

DECISION

June 28, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on exceptions to an award of Arbitrator I. B. Helburn 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 filed an opposition to the Agency's exceptions.

The Agency issued a letter of reprimand to an employee for failing to request annual leave in accordance with the conditions of a leave restriction letter. The Agency denied the employee's request for 5 hours' annual leave and charged the employee with 5 hours' absence without leave (AWOL). The Union filed a grievance on behalf of the employee claiming that the Agency's action violated the parties' collective bargaining agreement. The Arbitrator sustained the Union's grievance and directed the Agency to rescind the letter of reprimand and the charge of AWOL and to grant the grievant's request for 5 hours' annual leave. For the following reasons, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

The grievant has been employed by the Agency since 1971. Throughout his career with the Agency, the grievant used a substantial amount of sick leave, annual leave, and leave without pay due to medical problems. Apart from that, the grievant had a good record and received performance ratings of "outstanding" and "excellent" on two different occasions.

On May 14, 1987, the grievant was given a memorandum documenting a counseling session with a supervisory customs inspector (SCI) regarding the grievant's use of leave between April 1986 and April 1987. The memorandum informed the grievant that he was required to provide a "doctor's slip showing diagnosis and treatment for any absences [in conjunction with sick leave requests] through the end of June 1987." Award at 2. The memorandum also advised the grievant to "comply with relevant leave provisions [of the collective bargaining agreement] lest restrictions be placed on his use of leave . . . ." Id.

On February 8, 1988, the grievant's supervisor gave him a notice placing him on leave restriction in accordance with Article 13, section 23.B of the parties' national agreement. That section of the agreement contains the procedure for imposing leave restriction in cases of suspected abuse of sick leave.

The notice placed a number of restrictions upon the grievant's use of annual and sick leave including the following: (1) all requests for leave and reports of illness had to be personally reported within 1 hour of the grievant's start of duty to his SCI or to any SCI assigned to his office; (2) in the event the grievant was unable to personally report his absence, justification had to be provided for having someone else report his absence; and (3) all sick leave requests had to be supported by a physician's certification. The leave restriction was to be in effect for 6 months.

After 6 months passed without further leave-related incidents, the supervisor rescinded the leave restriction and requested that the memorandum be removed from the grievant's personnel file. On March 17, 1989, the chief inspector informed the grievant by a handwritten note on the first page of the leave restriction memorandum: "Just a reminder that this is still in effect." Id. at 4. The chief inspector testified before the Arbitrator that she was unaware that the first supervisor had rescinded the leave restriction and that she, the chief inspector, intended for the leave restriction to remain in effect.

In December 1988, when scheduling leave for the coming year, the grievant requested annual leave for July 2-8, 1989. On June 30, 1989, the grievant's supervisor informed him that he could not take the leave scheduled because he had insufficient leave available. Consequently, the grievant was off work from July 1 through July 5, using a combination of nonwork days, the July 4 holiday, and 1 day of annual leave. When the grievant returned to work on July 6, he discovered that he had 7 hours of annual leave available and told other employees, but not the supervisor, that he intended to use that leave the next day. The following morning the grievant's wife called and informed another employee that the grievant would be several hours late and would be on annual leave. The supervisor learned of the grievant's absence from the other employee. The grievant reported for work in the afternoon of that day and submitted a leave request form for 5 hours of annual leave. The supervisor disapproved the leave request and charged the grievant with 5 hours' AWOL. Subsequently, the supervisor issued a letter reprimanding the grievant for violating the leave restriction letter by failing to contact a supervisor regarding the grievant's "unapproved absence from duty." Id. at 5.

The Union filed a grievance on the grievant's behalf. The grievance was submitted to expedited arbitration on the following stipulated issues:

Whether the issuance of a written reprimand on or about August 1, 1989 was for such cause as will promote the efficiency of the service?

Whether the imposition of five hours of AWOL for July 7, 1989 was proper?

Id. at 6-7.

Initially, the Arbitrator rejected, for lack of evidence, the Union's claim that the grievant was reprimanded in retaliation for past grievances that he had filed. The Arbitrator noted that although the grievant had filed a number of grievances over the Agency's failure to promote him, the grievant was promoted to a senior inspector position in October 1990. Turning to the substantive issue of the grievance, the Arbitrator stated that "[a]t the core of the analysis of this case is the principle that annual leave is an earned right, as stated in Article 13, Part I, Section 1 [of the parties' collective bargaining agreement]." Id. at 8.(*) The Arbitrator noted that the agreement provided that annual leave requests must normally be approved unless granting the leave would impair operational requirements or staffing patterns.

The Arbitrator stated that the agreement "does not give the Agency the latitude to place restrictions on the use of annual leave in the same way that Article 13, Part III, Section 23 allows restrictions on sick leave." Id. at 9. The Arbitrator found that the record showed that other employees called in on the morning of the day leave was to be used and that their requests for annual leave were routinely approved, even when someone else called in for the employee. The Arbitrator also noted the testimony of the grievant's supervisors that the grievant's absence on the day in question did not impair operations. The Arbitrator concluded that the grievant's "request for annual leave was treated differently than others had been." Id.

The Arbitrator ruled that the grievant was not under a leave restriction for annual leave because (1) the Agency could not extend the life of the leave restriction that had been expired for 7 months, and (2) there is no provision under the parties' agreement for restricting use of annual leave in the same way as there is a provision for sick leave restriction.

The Arbitrator concluded that the written reprimand of the grievant did not promote the efficiency of the service and that the charge of 5 hours' AWOL was improper. He ordered that the grievant "be made whole by receiving the annual leave for July 7 and by being paid for the five hours." Id. at 11.

III. First Exception

A. Positions of the Parties

The Agency contends that the Arbitrator's finding that the Agency had no authority to impose a leave restriction on use of annual leave is contrary to law and regulation. The Agency argues that the fact that the agreement does not specifically cover leave restriction on use of annual leave does not mean that the Agency cannot issue an annual leave restriction letter. The Agency asserts that it was not the parties' intention when negotiating the agreement to prohibit the issuance of annual leave restriction letters. The Agency contends that it has the authority to issue such letters under Chapter 752-14(b)(4)(b) of the Federal Personnel Manual (FPM) and points out that many agencies have issued annual leave restriction letters. Further, the Agency maintains that it has discretion to decide when leave can be taken and that annual leave is usually requested in advance. The Agency also cites FPM Chapter 630, paragraph 3-4b(1) and FPM Letter 630-29, January 28, 1981, in support of its exception.

The Union asserts that the Arbitrator correctly found that the Agency's authority to issue a leave restriction letter for use of annual leave is limited by the parties' agreement and asserts that the Agency is claiming, in effect, that the award is contrary to the agreement. The Union maintains that the Agency is disagreeing with the Arbitrator's findings. The Union denies that the award is contrary to the FPM and notes that the Arbitrator also found that the Agency did not follow proper procedures for issuing an annual leave restriction letter, even if such a letter were permitted. The Union asserts that the Arbitrator did not hold that the Agency had no right to restrict the use of annual leave, but only ruled that the Agency's attempt to restrict the grievant's leave in this case by using an expired leave restriction letter was improper. The Union maintains that the parties negotiated over the standards the Agency would apply when approving annual leave and that the Agency violated those standards and also the workplace practice of allowing employees to request short periods of leave on the day the leave was used.

B. Analysis and Conclusions

We conclude that the Agency has not shown that the Arbitrator's award is contrary to law or regulation. The Agency has cited no provision of law with which the award conflicts and, therefore, that part of its exception provides no basis for finding the award deficient. See, for example, U.S. Department of Transportation, Federal Aviation Administration, Springfield, Illinois and National Air Traffic Controllers Association, 39 FLRA 1036, 1041 (1991) (FAA). Further, the Agency fails to establish that the award is contrary to the FPM provisions on which it relies. Those provisions provide guidance to agencies concerning the taking of adverse action based on an employee's being AWOL and concerning the exercise of agencies' discretion in the matter of leave administration and the handling of leave requests. Although the FPM discusses the issuance of leave restriction letters in connection with annual leave, nothing in those provisions cited by the Agency prevents the Agency from negotiating with the Union over the ways in which leave requests will be handled and the standards which will be used in approving annual leave requests. Therefore, that aspect of the exception provides no basis for finding the award deficient.

The Arbitrator found that under the parties' collective bargaining agreement, the Agency had agreed that annual leave requests would be approved unless the operation of the Agency would be impaired. He further found that the practice of the Agency was to routinely approve same-day leave requests such as the one made by the grievant through his wife. We conclude that the Agency's contentions in support of its first exception constitute mere disagreement with the Arbitrator's interpretation and application of the parties' collective bargaining agreement and with his finding that the grievant was treated differently from other employees. That disagreement provides no basis for finding the award deficient. See, for example, U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, 37 FLRA 1144, 1150 (1990) (SSA). Accordingly, the exception will be denied.

IV. Second Exception

A. Positions of the Parties

The Agency contends that the Arbitrator erred by finding that the expired leave restriction letter could not be reinstated by the chief inspector. The Agency asserts that it has found no law or regulation that would prohibit the chief inspector from reviving or extending the expired leave restriction. The Agency notes further that the chief inspector testified that she discussed the reinstatement of the leave restriction with the grievant and that the grievant did not object to or file a grievance over the reinstatement of the leave restriction at that time.

The Union contends that the Agency has failed to state a basis for finding the award deficient and argues that the Agency is only disagreeing with the Arbitrator's conclusions. The Union maintains that the Agency is attempting to relitigate the Arbitrator's finding that the Agency improperly relied on an expired leave restriction letter as the basis for taking disciplinary action against the grievant.

B. Analysis and Conclusions

The Agency's second exception does not demonstrate that the award conflicts with any law or regulation or that the award is deficient on any ground set forth in section 7122 of the Statute. As with its first exception, the Agency fails to cite any law with which the award conflicts. See FAA. We conclude that the Agency's exception constitutes disagreement with the Arbitrator's findings and conclusions and interpretation of the parties' agreement and provides no basis for finding the award deficient. See, for example, U.S. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina and Federal Employees Metal Trades Council, 39 FLRA 987, 992 (1991); SSA. The exception will be denied.

V. Third Exception

A. Positions of the Parties

The Agency contends that the Arbitrator's finding that the grievant was improperly charged with AWOL is contrary to law and regulation. The Agency maintains that the grievant failed to obtain the proper approval for leave as required by the FPM and that merely announcing to other employees that he would be on leave the next day without obtaining the approval of his supervisor was a correct basis for charging the grievant with AWOL.

The Union asserts that the Arbitrator correctly found that the grievant requested annual leave in accordance with existing practice by having his wife call in on the morning the leave was to be taken. The Union contends that the FPM provisions cited by the Agency do not contain binding requirements that annual leave must be requested and approved in advance but only provide guidance to the agencies on how to exercise their discretion in leave administration. The Union points out that the parties had negotiated over the leave request procedures and that those negotiated procedures limited the Agency's discretion.

B. Analysis and Conclusions

The Agency's third exception provides no basis for finding the award deficient. The Agency has cited no specific law with which the award allegedly conflicts. See FAA. Further, the Agency has not shown that the award violates any applicable regulation. The FPM provisions relied on by the Agency provide guidance to agencies in exercising their discretion in the administration of annual leave. Those FPM provisions do not impose binding requirements on the exercise of that discretion. Thus, the Agency has discretion to determine the procedures by which annual leave will be requested and approved and it has negotiated with the Union over how it will exercise that discretion. Further, the Arbitrator found that the Agency had in the past granted leave to employees who called and requested leave on the same day that the leave was taken. The Arbitrator interpreted the parties' agreement and considered the existing practice in the workplace to determine that the grievant was improperly denied the leave that he requested and that he was not treated in the same manner as other employees in similar situations. The Agency is only disagreeing with the Arbitrator's interpretation and application of the agreement and with his findings. Therefore, the exception provides no basis for finding the award deficient and will be denied. See SSA.

VI. Fourth Exception

A. Positions of the Parties

The Agency contends that the Arbitrator erred in finding that the reprimand of the grievant was not issued for such cause as would promote the efficiency of the service. The Agency maintains that the Arbitrator refused to consider the Agency's arguments that the reprimand had a corrective effect on the grievant's use of leave and that by refusing to consider those arguments, the Arbitrator showed bias. The Agency claims that the Arbitrator failed to characterize the grievant as a leave abuser although the Agency response to the grievance characterized him as such. The Agency contends that the reason the grievant was never promoted was because of his excessive use of leave and that the grievant was later promoted because his leave use had changed for the better after the reprimand. The Agency contends that the change in the grievant's behavior after the reprimand proves that the reprimand served to promote the efficiency of the service.

The Union asks that this exception be dismissed because the Agency has stated no grounds for finding the award deficient and is only disagreeing with the Arbitrator's conclusions. The Union argues that the validity of the reprimand cannot be based on the subsequent behavior of the grievant but rather must be based on whether the reprimand was made in accordance with the required procedures. The Union disputes the Agency's contention that the grievant was a leave abuser. The Union argues that even if it had been proven that the grievant was a leave abuser, the Agency could not violate the agreement by requiring the grievant to follow different procedures from other employees in requesting leave.

B. Analysis and Conclusions

We find no merit in the Agency's exception. To demonstrate that an award is deficient because of bias on the part of an arbitrator, it must be shown, for example, that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of a party. See, for example, Antilles Consolidated Education Association, OEA/NEA and U.S. Department of Defense, Antilles Consolidated School System, 38 FLRA 341, 352 (1990). The Agency has not shown that the award is deficient under any of those tests and has presented no evidence to show that the Arbitrator was biased or that his findings and award with respect to the reprimand of the grievant are deficient. We conclude that the Agency is only disagreeing with the Arbitrator's reasoning and conclusions and is attempting to relitigate the matter before the Authority. That provides no basis for finding the award deficient. See National Association of Government Employees, Local R14-77 and U.S. Department of Veterans Affairs, Medical Center, Grand Junction, Colorado, 40 FLRA 342, 347 (1991). The exception will be denied.

VII. Decision

The Agency's exceptions are denied.

APPENDIX

ARTICLE 13

LEAVE

Part I: ANNUAL LEAVE

Section 1. Annual leave will be earned and accrued in accordance with applicable laws and regulations.

Section 2. A. All requests for annual leave in excess of three (3) days shall be requested in advance and in writing. All other requests for annual leave shall be in advance whenever possible.

B. Annual leave will be approved in accordance with this Article unless permitting such leave would create a substantial impairment of operational requirements or staffing patterns.

. . . .

Section 6. Because a request for annual leave may involve business of a highly personal nature, the employee may not wish to divulge the nature of such personal business. Except when requesting leave for emergency reasons under Section 11 of this Article, the employee may give a reason of "personal business" when requesting annual leave and will not be required to provide details as to the specific reason.

Section 7. A. Should the Employer find it necessary to cancel previously approved leave, it will inform the employee as soon as the reason is known to the Employer. The reasons for cancelling leave will be provided in writing for all leave which was requested in writing.

. . . .

PART III: SICK LEAVE

. . . .

Section 23. A. Employees will be required to furnish reasonable acceptable evidence to substantiate a request for sick leave if the sick leave exceeds three (3) consecutive work days and the Employer has reasonable grounds to suspect the employee of sick leave abuse. In any case, employees may be required to furnish reasonable acceptable evidence to substantiate a request for sick leave if the sick leave exceeds five (5) consecutive work days.

B. If it appears that an employee is abusing sick leave, the employee will be counselled that continued abuse of sick leave may result in a requirement to furnish a medical certificate for each subsequent absence on sick leave regardless of duration. If the abuse of sick leave continues, the employee may be notified in writing that--for a stated period not to exceed six (6) months--all future requests for sick leave