47:0735(67)AR - - AFGE,Local 916 and Air Force, OK City Air Logistics Command, Tinker AFB, OK - - 1993 FLRAdec AR - - v47 p735
[ v47 p735 ]
The decision of the Authority follows:
47 FLRA No. 67
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
OKLAHOMA CITY AIR LOGISTICS COMMAND
TINKER AIR FORCE BASE, OKLAHOMA
May 26, 1993
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 Julius Rezler 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 Arbitrator denied a grievance alleging that the Agency suspended the grievant without just cause. For the following reasons, we conclude that the Union's exceptions fail to establish that the award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant, an industrial engineering technician, gave his supervisor a statement from the Agency's medical office recommending that the grievant be granted 1 week of sick leave. After handing his supervisor the recommendation, the grievant told his supervisor to place him on sick leave for the week and left the premises without waiting for the supervisor's response. During the week in question, the supervisor discovered that the grievant worked at his part-time job, and that he had also worked at his part-time job during certain other periods while he was on approved sick leave, without notifying the supervisor, as required by Agency regulation AFR 60-633.(1)
The supervisor placed the grievant on absence without leave (AWOL) for the week in question. Subsequently, the grievant obtained a doctor's certificate which stated that the grievant's medical problem was related only to his employment at the Agency, and recommended that the grievant take "time off his job at Tinker" Award at 4. The grievant presented his supervisor with an additional certificate which stated only "'[n]o work, 2/22 - 3/1.'" Id. The supervisor determined that the certificates were incomplete and proposed to suspend the grievant for 14 days for misrepresentation of sick leave. The grievant's second-level supervisor, the deciding official for the proposed suspension, agreed with the proposed action and the grievant was suspended. The grievant filed a grievance and, when the grievance was unresolved, it was submitted to arbitration on the following issues, as stated by the Arbitrator:
1. Did the Agency commit a harmful error when . . . the deciding officer, was also the designee who denied the grievance at Step 2 in violation of Section 6.07.b(1) of [the parties' collective bargaining agreement][;] and,
2. Was the 14-day suspension issued to Grievant for just cause? If not, what is the proper remedy?
Id. at 2.
Before the Arbitrator, the Union argued, as a procedural matter, that the Agency committed harmful error when the grievant's second-level supervisor heard the grievance at the second step of the grievance procedure, in violation of Article 6, Section 6.07.b of the parties' collective bargaining agreement.(2) The Union also contended that the Agency's decision to deny the grievance was contrary to 5 U.S.C. § 2303(b) and 5 U.S.C. § 7701(c)(2).(3)
The Arbitrator noted that, although the Agency acknowledged its violation of Article 6, Section 6.07.b(1) of the parties' agreement, the Agency argued that the harmful error rule was not applicable to suspensions of 14 days or less. Relying on Department of the Air Force, Griffiss Air Force Base and American Federation of Government Employees, Local 2612, 34 FLRA 712 (1990), the Arbitrator concluded that the harmful error rule did not apply in this case because it involved a suspension of 14 days or less. The Arbitrator also stated that, despite the Agency's "technical violation" of the parties' agreement, "it [was] highly improbable that another Step 2 official would have made any different decision." Award at 3.
Turning to the suspension, the Arbitrator noted the basic facts were not in dispute and found that the grievant did not comply with the requirements of AFR 60-633 when he failed to inform his supervisor that he would be working at another job during certain periods of time for which he had requested sick leave. Award at 3. The Arbitrator also determined that the grievant did not properly request sick leave for the week in question and that the medical certificates submitted by the grievant failed to meet the requirements set forth in Federal Personnel Manual (FPM) chapter 339. Accordingly, the Arbitrator determined that there was just cause to suspend the grievant.
In determining whether the suspension was the appropriate penalty, the Arbitrator concluded that the only mitigating factor in favor of the grievant was his lack of prior discipline. The Arbitrator further concluded, however, that this factor was offset by the grievant's insubordinate behavior toward his supervisor and his repeated vulgarity during the arbitration hearing. Consequently, the Arbitrator denied the grievance.
III. The Exceptions
The Union argues that the award violates Article 6, Section 6.07.b, and Article 24, Section 24.04, of the parties' collective bargaining agreement.(4) The Union further argues that the award is contrary to AFR 60-633.
In support of its arguments, the Union asserts that the Agency's regulations conflict with FPM chapter 339, which, according to the Union, the Agency relies on to "enforce [s]ick [l]eave."(5) Exceptions at 5. In this connection, the Union contends that there was no evidence presented at the hearing that the grievant was aware of FPM chapter 339. The Union further contends that "[t]he issue of whether or not [s]ick [l]eave was requested or granted was never raised" during either the notice period for the proposed action, or during the subsequent grievance process. Id. In this connection, the Union asserts that the only issue which the Arbitrator should have considered was whether the grievant misrepresented his request for sick leave. Finally, the Union contends that the Arbitrator should have considered the grievant's "exemplary record" as a mitigating factor. Id. 5.
IV. Analysis and Conclusions
A. The Award Draws Its Essence from the Agreement
We construe the Union's contention that the award is contrary to Article 24, Section 24.04 of the parties' agreement as a contention that the award fails to draw its essence from the agreement. To demonstrate that an award fails to draw its essence from the parties' collective bargaining agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (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; (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 1840 and U.S. Department of the Air Force, Randolph Air Force Base, San Antonio, Texas, 46 FLRA 1191, 1194 (1993).
With respect to Article 24, Section 24.04, the Union has not demonstrated that the award fails to draw its essence from the parties' agreement under any of these tests. In this regard, the Arbitrator specifically concluded that the Agency's medical office had not granted the grievant sick leave but, instead, had only recommended that the grievant's supervisor consider granting such leave. Further, as noted previously, the Arbitrator concluded that the grievant had not properly requested or substantiated his need for sick leave. We have no basis on which to conclude that, with respect to Article 24, Section 24.04, the award is irrational, unfounded, implausible or in manifest disregard of the agreement. For example, id. at 1194-95. Accordingly, the Union has not demonstrated that the award fails to draw its essence from the agreement.
B. Article 6, Section 6.07
As noted previously, the Arbitrator found a "technical violation" of Article 6, Section 6.07.b of the parties' agreement. Award at 3. Accordingly, the Union's exceptions that the award violates this provision is not clear. However, insofar as the Union contends that the Arbitrator was required to sustain the grievance on the basis of the contract violation, we disagree.
The Union has not shown that the Arbitrator was obligated by law to find that the grievant was entitled to a remedy because the Agency violated Article 6, Section 6.07.b of the parties' agreement. See U.S. Department of Defense, Army Chemical and Military Police Centers, Fort McClellan, Alabama and American Federation of Government Employees, Local 1941, 39 FLRA 457, 464 (1991) (Fort McClellan, Alabama). In this connection, arbitrators have great latitude in determining and fashioning remedies. For example, id. In our view, the Union's argument constitutes nothing more than disagreement with the Arbitrator's determination that no remedy was warranted for the contract violation, and an attempt by the Union to have a remedy substituted for that determination. Such disagreement provides no basis on which to find the award deficient. Id. Accordingly, we will deny this exception.
C. The Award Is Not Inconsistent with Agency Regulations
Absent circumstances not relevant here, an arbitration award that conflicts with a governing agency regulation will be found deficient under section 7122(a)(1) of the Statute. See, for example, U.S. Department of the Treasury, Internal Revenue Service, Ogden Service Center, Ogden, Utah and National Treasury Employees Union, Chapter 67, 42 FLRA 1034, 1056 (1991) (IRS, Ogden). Moreover, arbitrators have authority to interpret and enforce agency regulations. Id.
The Arbitrator found that the grievant failed to inform his supervisor that he would be working at his part-time job during certain periods of time for which he requested sick leave. Further, the Arbitrator determined that the medical statements provided by the grievant were not acceptable. Based on these findings, the Arbitrator concluded that the charges underlying the 14-day suspension were proper. Based on the plain wording of AFR 60-633, as quoted in the record before us, we conclude that the Union has not demonstrated that the Arbitrator's conclusions are contrary to the Agency's regulation. See IRS, Ogden, 42 FLRA at 1057. Having found that the Union has not shown that the award conflicts with the Agency's regulation, we need not determine whether the pertinent regulation is a "governing" Agency regulation. Id.
In addition, the Union has not demonstrated that the Agency's regulations are inconsistent with FPM chapter 339.(6) In our view, the Union's arguments constitute nothing more than disagreement with the Arbitrator's evaluation of the evidence and an attempt to relitigate the merits of the grievance before the Authority. As such, this exception provides no basis for finding the award deficient. See, for example, U.S. Department of Health and Human Services, Administration for Children and Families and National Treasury Employees Union, NTEU Chapter 250, 46 FLRA 1107, 1111 (1993).
D. The Award Is Not Based on a Nonfact
We construe the Union's contention that "[t]he issue of whether . . . [sick leave] was requested or granted was never raised" during any part of the proceedings as a contention that the award is based on a nonfact. Exceptions at 5.
To demonstrate that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See, for example, General Services Administration, Region 2 and American Federation of Government Employees, Local 2431, 46 FLRA 1039, 1046-47 (1992). We conclude that the Union has not demonstrated that the issue of whether the grievant requested sick leave is a fact or is central to the award. Therefore, we conclude that the Union has not demonstrated that the award is deficient as based on a nonfact.
E. The Arbitrator Did Not Exceed His Authority
We construe the Union's assertion that the only issue before the Arbitrator was whether the grievant misrepresented his request for sick leave as a contention that the award is deficient because the Arbitrator exceeded his authority.
An arbitrator exceeds his or her authority when, among other things, he or she issues an affirmative order that exceeds the scope of the matter submitted to arbitration. See, for example, U.S. Small Business Administration, Atlanta, Georgia and American Federation of Government Employees, Local 3906, 37 FLRA 137, 142 (1990) (SBA). The Union makes no demonstration that the Arbitrator issued an order which exceeded the scope of the matter submitted to Arbitration. Accordingly, the Union's exception provides no basis for finding the award deficient. See SBA, 37 FLRA at 142-43.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. AFR 60-633, as quoted by the Arbitrator, provides that:
As a general rule, sick leave is not approved for a period of absence during which an employee engages in outside employment. Exception is made . . . when it is evident that he is still incapacitated from his regular job even though he is able to engage in the outside employment. However, before engaging in outside employment, during a period of sick leave, the employee must notify the leave approving official of the nature of employment and furnish acceptable evidence that he is still incapacitated for duty.
Award at 3-4.
2. Article 6, Section 6.07.b(1) of the parties' agreement provides, in pertinent part:
The designated official in the organization to whom the grievance is referred for resolution must not be the official who took the action or who was involved in an attempt at resolution.
Exceptions at Attachment 2.
3. 5 U.S.C. § 2302(b) identifies certain "prohibited personnel practices." The Union does not specify which part of section 2303(b) it believes is applicable in this case.
5 U.S.C. § 7701(c)(2)(A) and (B), provides, in pertinent part, that on appeal to the Merit Systems Protection Board (MSPB), an agency's decision shall not be sustained if the employee demonstrates either "harmful error" in the application of agency procedures or that the decision was based on a prohibited personnel practice.
4. Article 24, Section 24.04 provides:
Employees who are released from duty on advice of the Base Medical Authority because of illness shall not be required to furnish medical certificates to substantiate sick leave for the day they were released from duty.
Exceptions at Attachment 2.
5. The Union cites Agency regulation "40-630" in addition to AFR 60-633. Exception