42:1186(83)AR - - Army, HQ, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC and AFGE Local 1770 - - 1991 FLRAdec AR - - v42 p1186
[ v42 p1186 ]
The decision of the Authority follows:
42 FLRA No. 83
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator David A. Singer, Jr. 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.(1)
A grievance was filed over the Agency's discipline of the grievant for insubordination, refusal to perform assigned duties, and for being absent without leave (AWOL). The Arbitrator mitigated the discipline from a 10-day suspension to a 5-day suspension.
We conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
At the time of the events involved in the arbitration, the grievant was employed by the Agency as a computer operator on the midnight to 8:00 a.m. shift. On April 11, 1989, the grievant injured her knee while off duty. The next day the grievant visited the emergency room at a local hospital and received a medical certificate. She was instructed to visit an orthopedic surgeon if her problem persisted after one week. The medical certificate given to her on April 12, 1989, stated the following restrictions: "No stooping, bending, or excessive walking for one week." Award at 2.
The grievant returned to work on April 13, 1989, and presented her medical certificate to the computer operations supervisor. During the subsequent two weeks the grievant worked at various tasks. On April 21, 1989, the grievant made her first visit to the orthopedist. The orthopedist issued her a medical certificate on April 21, 1989, and another one on May 5, 1989. Both certificates stated the following restrictions: "Sit-down work, non-weight bearing on leg." Id. The certificates also noted that "[i]f limited work as indicated above is not available, then [s]he should be considered unable to work." Id.
The events leading to the 10-day disciplinary suspension involved an on-going dispute between the grievant and her supervisor as to what duties she could perform based on the medical certificates she had obtained after her knee injury. The Arbitrator made the following findings on the events in dispute. On April 27, 1989, after the chief of the data systems branch heard that the grievant had filed a grievance against her supervisor, the chief requested that the grievant report to her office. The request was delivered shortly after the close of the grievant's shift and the grievant adamantly declared herself off the clock, on her own time, and not subject to the chief's commands. On April 28, 1989, the grievant chose to leave the work site because of her knee injury rather than work in the microfiche room. Instead of attempting to resolve her problem with her work assignment, the grievant declared herself to be on sick leave, left the work site, and returned home. The Arbitrator found that the grievant did not request sick leave and that she was not placed on sick leave by the Agency.
On May 2, 1989, during a telephone conversation between the grievant and her supervisor, the grievant declared that she considered herself to be on sick leave. The grievant informed the supervisor that she would not return to work until the matter of her work assignment was resolved in keeping with her medical limitations. The supervisor refused to grant the leave and placed the grievant on AWOL status. On May 20, 1989, the grievant reported to work at the microfiche room, worked for one hour, and then informed the supervisor that she could not continue. The Arbitrator found that the grievant refused the supervisor's suggestion to meet with the chief and that she again left the work site. In an attempt to talk with the grievant, the Union representative and the chief scheduled a meeting for the following Monday. Neither the grievant nor the Union representative appeared for that meeting.
On July 9, 1989, the Agency issued a memorandum proposing a suspension for 10 workdays for the following offenses, based on the events outlined above: (1) insubordination and defiance of authority; (2) refusing to perform assigned work; and (3) being AWOL. A grievance over the disciplinary action was filed. The grievance was not resolved and was submitted to arbitration.
Before the Arbitrator, the Union argued that the grievant legitimately took the option of "self relief" when she refused to perform the duties that were outside the limitations of her medical certificates. The Union contended that the grievant was in discomfort and in danger of further knee damage. The Union claimed that the grievant requested sick leave, which was denied. The Union further contended that even though the grievant could have been assigned duties within the limitations her physician prescribed, she was assigned tasks that could not be done while seated and that were weight-bearing. The Union further argued that the grievant was within her rights in refusing the order to report to the chief's office when she was off the clock on April 27, 1989, and that she was never insubordinate during the period in question. The Union asserted that the grievant repeatedly attempted to apprise her supervisor of her physical limitations, was not AWOL, and had not refused to perform assigned work. The Union argued that the grievant attempted to perform the assigned work, but was unable to do so. The Union claimed that, therefore, the grievant was forced to place herself on sick leave.
The Agency contended before the Arbitrator that it had complied with the restrictions outlined in the grievant's medical certificates. It argued that because the grievant's regular job as a computer operator entailed excessive walking and lifting, it placed her in the microfiche room where she could perform most of the duties required while seated. The Agency contended that the grievant could execute the minimal movements required in the microfiche room. The Agency asserts that the grievant's behavior from April 27 through May 20, 1989, was entirely unacceptable and that she deserved the 10-day suspension. The Agency claimed that the grievant failed to request any kind of leave, and that instead she had declared herself to be on sick leave and left the work site without permission.
The Arbitrator framed the issue before him as "[w]as [the grievant] improperly disciplined and if so, what is the appropriate remedy?" Award at 1.
The Arbitrator found that the grievant could have continued to perform microfiche room duties until she could communicate with her supervisors about her situation. The Arbitrator found that the Agency "clearly exerted no special effort to accommodate her." Id. at 28. He also found, however, that all the duties at the work site required some walking and weight-bearing activity and that the microfiche room was the most appropriate place for the grievant to work. The Arbitrator found that although the supervisor's poor judgment and ineffective communications skills served to "agitate" the grievant, the grievant inappropriately refused the assigned duties. Id. He found that the grievant elected to leave the work site, thereby placing herself in a vulnerable position.
The Arbitrator found that the grievant "never actually requested sick leave . . . [r]ather, she invoked self-help, declaring to supervision that she considered herself on sick leave." Id. at 26. In sum, the Arbitrator found that the grievant's behavior was insubordinate on numerous occasions over the period, that she should not have engaged in self-help, and that the Agency rightfully placed her in AWOL status. He also concluded, however, that in view of the grievant's "unblemished record and the supervisor[']s pathetic employee relations skills," the discipline should be reduced. Id. at 30.
In mitigating the discipline imposed, the Arbitrator further found that all the events during the period in question were related, and therefore, could be viewed as one offense. The Arbitrator's award required that: (1) the suspension be reduced to 5 days without pay; (2) the grievant's record be amended to reflect a 5-day suspension; and (3) the grievant be made whole in an amount equal to one-half of all wages and benefits forfeited as a result of the 10-day suspension.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the Arbitrator's decision is contrary to law, rule and regulation. The Union argues that the Arbitrator's finding that the Agency "exerted no special effort to accommodate her[,]" Award at 28, indicates that the Arbitrator found that the grievant had a "handicapping condition" that was not accommodated, as required by Federal law. According to the Union, although the Arbitrator found the "requisite conditions to support handicap discrimination" and despite the directions contained in the grievant's medical certificates, the Arbitrator nonetheless suggested that the grievant could have continued to work. Exceptions at 1. The Union contends that this finding by the Arbitrator is an error. In this regard, the Union states that Article XXII, Section 7 of the parties' agreement provides that employees have the right to appropriate relief in such situations.(2) The Union also argues that the Arbitrator's award was wrong under "statutory EEO law and the EEO contract language" of the parties' agreement, Article VIII, Section 1. Id. at 2.
The Union also contends that the Arbitrator failed to address the AWOL imposed upon the grievant despite the parties' contract language in Article XVI, Section 2 that "[e]mployees shall earn and be granted sick leave in accordance with the applicable statutes and regulations." Exceptions at 2. It argues that the Arbitrator erred in not awarding the grievant sick leave during the period that her injury prevented her from working. The Union claims that, under the applicable regulations, because the Arbitrator "found that the conditions existed that . . . would make [the] grievant unable to work . . . the [A]rbitrator, by definition, had to find that [the] grievant was, in fact, on sick leave, whether she came to work and left or remained home." Id. at 3.
The Union further contends that the Arbitrator had no basis in law for sustaining the portion of the discipline imposed because of the grievant's refusal to attend a meeting with her second-line supervisor on April 27, 1989, when the grievant was off duty.
B. Agency's Opposition
The Agency contends that the Arbitrator's award is not contrary to laws regarding handicap discrimination. The Agency disputes the Union's characterization of the Arbitrator's award. It argues that at no point in the Arbitrator's award did he find that the grievant is handicapped within the meaning of the "Handicap Accomodation [sic] Act." Opposition at 1. Rather, the Agency argues that the Arbitrator found only that the grievant was injured, and that neither that finding nor the use of the word "accommodate" in the Arbitrator's award leads to a conclusion that the grievant has the status of a protected person within the meaning of that statute.
The Agency further disputes the Union's claim that the Arbitrator's award is deficient because it fails to find that the imposition of AWOL violated sick leave regulations. The Agency contends that 5 C.F.R. §630.402 provides that an employee shall file a written application for sick leave within agency-prescribed time limits, and it notes that the Arbitrator found that the grievant never asked for sick leave. The Agency further argues that the grievant did not establish that she was incapable of performing her duties during the period for which she was placed on AWOL. The Agency contends, therefore, that the grievant cannot complain about not receiving what she failed to request or to which she failed to establish an entitlement.
Finally, the Agency argues that the Arbitrator correctly sustained the discipline imposed because the grievant failed to attend a meeting with her supervisor. The Agency states that "it is the impact upon the agency, not the time or location of the act, which makes the conduct punishable." Id. at 2.
IV. Analysis and Conclusions
We conclude that the Union fails to establish that the Arbitrator's award is contrary to law, rule or regulation, or that the award fails to draw its essence from the collective bargaining agreement. Accordingly, we will deny the exceptions.
We construe the Union's first exception that the Arbitrator erred "as a matter of statutory EEO law and the EEO contract language" of the parties' agreement as an assertion that the award is contrary to the Rehabilitation Act of 1973, 29 U.S.C. §791 (Rehabilitation Act). We conclude that the Union fails to establish that the award is contrary to the Rehabilitation Act.
The Rehabilitation Act imposes a duty upon Federal agencies to make reasonable accommodation to the limitations of their qualified handicapped employees unless they can show that to do so would impose undue hardship on their operations. See Rodgers v. Lehman, 869 F.2d 253, 258 (4th Cir. 1989). Although the Union suggests that the award is deficient because the grievant had a handicapping condition that was not accommodated, the Union provides no support for its assertion, and none is apparent to us. Thus, the Union fails to establish that the grievant is a "qualified handicapped person" entitled to the protection of the Rehabilitation Act. 29 C.F.R. §1613.702(f).
Even assuming that the grievant is a qualified handicapped person, the Union has not established that the Agency failed to make reasonable accommodation to the grievant's known physical limitations. 29 C.F.R. §1613.704. The Arbitrator specifically found that the grievant could have performed the disputed work for a short time despite the medical certificates' directions and that the "microfiche room was the most appropriate place for the Grievant to work." Award at 28. Given these findings, there is an insufficient basis for concluding that the Arbitrator was making a determination within the terms of the Rehabilitation Act when he stated that the Agency "clearly exerted no special effort to accommodate [the grievant]." Id. Consequently, we do not find that the award is contrary to the Rehabilitation Act. See U.S. Department of the Air Force, Headquarters Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 40 FLRA 214, 219-20 (1991). In so finding, we also conclude that the award is not contrary to Article VIII, Section 1 of the parties' agreement, which prohibits discrimination based on a "handicapping condition."
We also conclude that the Union fails to establish that the award is contrary to 5 C.F.R. §630.402 and Article XVI, Section 2 of the parties' agreement, which requires the Agency to grant sick leave in accordance with applicable statutes and regulations. 5 C.F.R. §630.402 requires that "[a]n employee shall file a written application for sick leave . . . ." The Arbitrator specifically found that the grievant "never actually requested sick leave." Award at 26. As an employee must request sick leave to be entitled to it, we conclude that the Arbitrator's award was not deficient because it did not award the grievant sick leave for the period of her injury. See generally U.S. Department of Health and Human Services, Social Security Administration, Kansas City, Missouri District and American Federation of Government Employees, Local 1336, 39 FLRA 22, 25 (1991) (a grant of sick leave must be based on a specific request). Rather, we find that the Union's exception constitutes nothing more than disagreement with the Arbitrator's evaluation of the evidence and findings and conclusions in this regard and provides no basis for finding an award deficient. See Department of the Army, 7th Infantry Division (Light), Fort Ord, California and American Federation of Government Employees, Local 2082, 34 FLRA 916 (1990).
We construe the Union's claim that the award is contrary to various provisions of the parties' collective bargaining agreement as an allegation that the award fails to draw its essence from the agreement. To demonstrate that an award fails to draw its essence from an agreement, a party must show 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 the 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. See, for example, American Federation of Government Employees, Local 51, AFL-CIO and United States Mint, Department of the Treasury, 41 FLRA 48, 51 (1991).
The Union provides no basis to conclude that the award fails to draw its essence from the agreement under any of these tests. As we concluded above, the award is consistent with Article VIII, Section 1 and Article XVI, Section 2, which restate certain requirements of Federal law and regulation. We further conclude that the Union fails to establish that the award does not draw its essence from the agreement under any of the established tests when it asserts that the grievant had the right to appropriate relief, that is, to resort to self help, under Article XXII, Section 7 of the parties' agreement. Rather, the Union's exception constitutes nothing more than disagreement with the Arbitrator's findings of fact and conclusion based thereon that the grievant was capable of performing microfiche room duties for the short period of time necessary to communicate her situation to higher supervisory authority. Such a contention provides no basis for finding the award deficient. See U.S. Department of the Air Force, Langley Air Force Base, Hampton, Virginia and National Association of Government Employees, Local R4-106, 41 FLRA 246 (1991). Accordingly, there is no basis on which to conclude that the award fails to draw its essence from the agreement.
Finally, we conclude that the Union fails to establish that the award is deficient because the Arbitrator "apparently" sustained the portion of the discipline imposed for the grievant's refusal to attend a meeting after duty hours on April 27, 1989. Exceptions at 3. The Union contends that there is no basis in law to support the Agency's discipline of the grievant because of this incident. The Arbitrator found that the grievant's behavior was insubordinate on numerous occasions over the period in question, that she should not have engaged in self-help, and that the Agency rightfully placed her in AWOL status. In reviewing the appropriateness of the discipline imposed and mitigating the discipline, the Arbitrator concluded that all the events during the period in question were related and stated that he viewed the entire series of events as one offense. Because the Arbitrator viewed the entire series of events as one offense, it is not apparent how much, if any, of the discipline sustained by the Arbitrator is directly attributable to the April 27 incident. Therefore, we conclude that even if the Arbitrator incorrectly determined that the Agency appropriately could have imposed discipline based on the April 27 incident, the Union has not established that the Arbitrator's outcome would be any different had he concluded that the grievant should not have been disciplined for that incident. Accordingly, we find that the Union has not demonstrated that the Arbitrator's award is deficient in this regard.
In sum, we conc