48:0660(67)AR - - Justice, FBI and AFGE, Local 3652 - - 1993 FLRAdec AR - - v48 p660



[ v48 p660 ]
48:0660(67)AR
The decision of the Authority follows:


48 FLRA No. 67

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3652

(Union)

0-AR-2444

_____

DECISION

October 8, 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 Ellen J. Alexander 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 did not file an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance regarding the grievant's use of sick leave, for which a 5-day suspension was imposed. For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant, a recreation specialist at the Metropolitan Correctional Center, was suspended for 5 days for failing to follow proper procedures regarding the use of sick leave and for being absent without leave (AWOL). Under the parties' master agreement, employees are required to apprise their immediate supervisors of any illness. The parties' supplemental agreement permits non-correctional staff employees to "attempt to contact their supervisor directly[.]" and, if unsuccessful, to contact the duty lieutenant. Award at 3.

The facts establish that the grievant's immediate supervisor was absent from the office during the period of July 3 - July 7, 1992. During that time, she delegated certain unspecified responsibilities to the time and attendance record keeper. On July 7, the grievant became ill during his workshift. He went home that day and called in sick the following day. Differing accounts as to the manner in which the grievant requested the use of sick leave on July 7 were presented to the Arbitrator. However, it is clear that, on that date, the grievant and the "duty lieutenant," who was aware of the grievant's illness, encountered the time and attendance keeper near an elevator as the grievant was departing from work. Id. at 4. The grievant essentially advised the record keeper that he was ill and requested that she place him on sick leave. On July 8, the grievant telephoned and asked to speak with his immediate supervisor. The record keeper answered the telephone and advised the grievant that the supervisor was unavailable. The grievant then told the record keeper that he was ill and asked her to notify the immediate supervisor, which she did. Thereafter, the immediate supervisor recommended that the grievant be suspended for 5 days for failing to follow proper procedures and for being absent without leave on July 8. The warden of the Metropolitan Correctional Center reviewed the matter and concurred with the decision to impose the 5-day suspension, based on his conclusion that the grievant had left on July 7 without proper authority and that on July 8 he had not tried to reach his supervisor.

A grievance was filed contesting the suspension. The grievance was unresolved and was submitted to arbitration. The issue before the Arbitrator was "whether the [g]rievant was disciplined for just and sufficient cause under the [parties'] agreement." Id. at 1.

The Union argued before the Arbitrator that the grievant was, in fact, granted sick leave on July 7 and that the warden had impermissibly considered the grievant's departure from work on that day in imposing the suspension. The Union also argued that the record keeper's knowledge that the grievant was on sick leave on July 7 relieved the grievant of any responsibility to call in on July 8 and that, in any event, the grievant's July 8 telephone call was sufficient to provide advance notice of the grievant's absence. Finally, the Union argued that any unauthorized absence was, at most, a technical violation of procedure calling for a lesser penalty than the 5-day suspension.

The Agency argued that the grievant was obligated under the parties' master agreement and a "1990 sick leave request procedure" to contact his supervisor in order to request sick leave. Id. at 9. The Agency asserted that, because the grievant did not seek to speak with his supervisor on July 8, the telephone call to the record keeper was insufficient. The Agency further maintained that it could have charged the grievant with AWOL on July 7, as well as on July 8, because the duty lieutenant was not authorized to grant the grievant sick leave on July 7.

The Arbitrator found that the Agency had not established that the grievant either failed to follow proper procedures or that he was AWOL. Consequently, the Arbitrator concluded that just and sufficient cause for the suspension had not been shown.

In reaching this result, the Arbitrator found that the grievant was, in fact, granted sick leave on July 7 and that the decision to grant sick leave had been made by the grievant's immediate supervisor, with whom the record keeper had consulted upon the supervisor's return to duty. In so finding, the Arbitrator examined the events that occurred on July 7, as well as the absence of any reference to those events in the supervisor's notice of proposed discipline. As for the grievant's absence on July 8, the Arbitrator noted that an employee is contractually obligated "to make a bona fide attempt to contact his supervisor directly." Id. at 10. However, the Arbitrator found that what constitutes such an attempt can change under the circumstances. In this case, the Arbitrator concluded that the grievant's attempt to speak directly with his supervisor, and the message that was transmitted promptly to the supervisor by the record keeper, constituted an adequate attempt to contact the immediate supervisor. The Arbitrator nonetheless cautioned that her award should not be viewed as a holding that "such substitute messages are always acceptable." Id. at 11.

Accordingly, the Arbitrator sustained the grievance. The Arbitrator ordered the Agency to rescind the suspension, remove any record of the discipline, and make the grievant whole for any lost pay or benefits.

III. Agency's Exceptions

The Agency claims that the award is deficient because it does not draw its essence from the parties' master agreement, as supplemented by the local agreement. The Agency asserts that Article 6 of the supplemental agreement requires, in plain and unambiguous language, that employees attempt to contact their immediate supervisors when requesting sick leave.(*) If that attempt is unsuccessful, the Agency states that employees are required to contact the duty lieutenant. According to the Agency, the Arbitrator effectively amended the parties' agreement by finding that the grievant's message on July 8, which was left with the record keeper, constituted a "sufficient 'substitute [for the contractually required] message.'" Exceptions at 6 (footnote omitted). In the Agency's view, the award creates an exception to the agreement's sick leave procedures that would permit employees to leave messages with persons other than the supervisor or the duty lieutenant.

The Agency further argues that once it was shown that the grievant failed to follow the contractual procedures, "the [g]rievant's culpability was established." Id. at 7. The Agency claims that the Arbitrator was then limited to deciding whether the penalty that was imposed was reasonable. Finally, the Agency argues that, at a minimum, the case should be remanded to require the Arbitrator to decide whether the grievant was obligated to call in on July 8.

IV. Analysis and Conclusions

We find that the Agency has not established that the award is deficient. Accordingly, we will deny the exceptions.

The Agency primarily excepts to the award on the basis that it fails to draw its essence from the parties' master agreement, as supplemented by a local agreement. In order for an award to be found deficient on this ground, the party making such an allegation must establish that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason or in fact, or so unconnected with the wording and purpose of the collective bargaining agreement, as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 47 FLRA 106, 108 (1993). We conclude that the Agency fails to establish that the award does not draw its essence from the agreement under any of these standards.

The Arbitrator examined the provisions of the parties' master and supplemental agreements and found, based on the facts of the case, that the grievant's actions were not inconsistent with the sick leave procedures contained therein. Instead, the Arbitrator found that the grievant had been placed on sick leave on July 7, essentially at the direction of the grievant's immediate supervisor. As to the grievant's absence on July 8, the Arbitrator found, consistent with the parties' agreements, that the grievant made an adequate attempt to contact his supervisor. Implicit in the Arbitrator's conclusion was a finding that the grievant had successfully contacted his supervisor and, as such, there was no need to contact the duty lieutenant as specified in Article 6 of the supplemental agreement. In our view, the Arbitrator's interpretation of the parties' agreements was reasonable and plausible. The Agency's claim that the award is deficient because it fails to draw its essence from Article 6 constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement and provides no basis for finding the award deficient. See U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 2608, 38 FLRA 28 (1990).

Moreover, there is no evidence that the Arbitrator created an exception to the agreements' sick leave procedures, as argued by the Agency. The Arbitrator specifically cautioned that her award should not be viewed as permitting other employees to provide "substitute messages." Award at 11. The Arbitrator merely found, given all the circumstances of this case, that the grievant had not acted improperly. See id. (Authority dismissed agency's contention that arbitrator added substantive item to parties' agreement).

Finally, we reject the Agency's assertions that the Arbitrator was limited to determining the reasonableness of the penalty and that the case should be remanded to enable the Arbitrator to decide whether the grievant was obligated to call in on July&