51:0198(21)AR - - Navy, Naval Training Center, Great Lakes, IL and AFGE Local 2326 - - 1995 FLRAdec AR - - v51 p198
[ v51 p198 ]
The decision of the Authority follows:
51 FLRA No. 21
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE NAVY
NAVAL TRAINING CENTER
GREAT LAKES, ILLINOIS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
September 22, 1995
Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Joseph P. Yaney 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 Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied in relevant part a grievance claiming that the Agency violated the grievant's job restoration rights under the Federal worker's compensation program.
For the following reasons, we conclude that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Arbitrator's Award
The grievant, a WG-10 sheet metal mechanic, suffered a job-related back injury in July 1988. Thereafter, he worked intermittently until he stopped working as a sheet metal mechanic in July 1990 because of the recurrence of that injury. The grievant received worker's compensation each time the injury prevented him from working.
Subsequently, the grievant was examined by the Agency's physician and another physician, both of whom determined that the grievant could not perform the duties of a sheet metal mechanic. Based on these determinations, the Agency offered, and the grievant accepted, an assignment as a GS-4 clerk. The grievant's assignment to the clerk position became effective on November 4, 1990. The grievant suffered another recurrence of his injury in September 1991 and it was determined by the grievant's personal physician that the grievant was not "fully recovered from his injury until Nov[ember] 1, 1991." Award at 4.
The Union filed a grievance over the Agency's failure to restore the grievant to the sheet metal mechanic position and requested that he be restored to that position as of November 4, 1990. The grievance was denied and submitted to arbitration, where the issue before the Arbitrator was whether the Agency violated the grievant's job restoration rights under law and regulation by offering him the clerk position instead of the sheet metal mechanic position.
The Arbitrator determined that under applicable regulatory provisions, an employee who receives worker's compensation payments for more than 1 year following a compensable injury is not entitled to be restored to the position the employee held at the time of the injury. The Arbitrator found that the Union did not demonstrate that a new 1-year time limit was established each time the grievant's injury recurred after he returned to work. The Arbitrator determined that the Agency did not violate the grievant's rights by offering him the clerk position because the Arbitrator found that the grievant was injured in July 1988 and was not fully recovered until November 1991, a period longer than 1 year. As a result, the Arbitrator concluded that the grievant was not entitled to be restored to the sheet metal mechanic position, and he denied the grievance in relevant part.
A. Union's Contentions
The Union contends that the award is contrary to laws and regulations governing restoration rights of employees who are injured on the job. According to the Union, "an individual is considered disabled from the commencement of worker's compensation to the cessation of such payment or from the time compensable disability recurs." Exceptions at 2. In this regard, the Union argues that the grievant "was fully recovered prior to  year from the recurrence of his disability on September 4, 1991." Id. The Union maintains that the evidence demonstrates that the grievant was entitled to restoration to the sheet metal mechanic position.
Further, the Union argues that the Arbitrator concluded that the grievant voluntarily accepted the clerk position in October 1990, and that this conclusion is based on a nonfact. According to the Union, the evidence demonstrates that the grievant's acceptance was involuntary because "he only accepted the position due to the threat of being terminated from Federal employment." Id.
Finally, the Union argues that the Arbitrator "failed to properly judge the testimony of the witnesses and exhibits as presented." Id. at 4.
B. Agency's Opposition
The Agency asserts that the award is consistent with regulations governing the restoration rights of injured employees and that the Union's exceptions constitute nothing more than an attempt to substitute the Union's conclusions for the Arbitrator's findings. The Agency maintains that there is no evidence to support the Union's claim that the grievant was threatened with termination of employment if he did not accept the clerk position.
IV. Analysis and Conclusions
A. Law and Regulation
Under 5 U.S.C. § 8151(b)(1) (section 8151(b)(1)), employees who suffer job-related injuries are entitled to restoration to their previous job only if they recover from their compensable injuries within 1 year calculated either from: (1) the date compensation begins; or (2) the time compensable disability recurs if the recurrence begins after the injured employees resume regular full-time employment. The phrase "regular full-time employment" is not defined in section 8151(b)(1) or 5 C.F.R. part 353, Restoration to Duty From Military Service or Compensable Injury.(1) However, that phrase has been interpreted to mean "that [an] employee must be able to perform all the duties of the position he left or of an equivalent one[.]" Denny v. Department of the Navy, 40 M.S.P.R. 241, 245 (1991). Moreover, the pertinent Office of Personnel (OPM) regulations provide that section 8151(b)(1) applies only to an employee who is "fully recovered," a phrase which has been defined by those regulations to mean that "compensation payments have been terminated on the basis that the employee is able to perform all the duties of the position he left or an equivalent one." 5 C.F.R. § 353.102.(2)
We find, applying 5 U.S.C. § 8151(b)(1) and 5 C.F.R. § 353.102 to the record, that the Arbitrator properly concluded that the grievant was not entitled to be restored to the sheet metal mechanic position. That the Arbitrator incorrectly stated how the 1-year period is calculated and based his conclusion on his incorrect view as to how the period is calculated does not alter our conclusion. See American Federation of Government Employees, Local 2250 and U.S. Department of Veterans Affairs, Medical Center, Muskogee, Oklahoma, 51 FLRA No. 6 (1995), slip op. at 3 (the Authority found that the arbitrator was correct in his conclusion, but for different reasons than those stated by the arbitrator). As relevant here, under 5 U.S.C. § 8151(b)(1) and 5 C.F.R. § 353.102, employees retain restoration rights to their positions, or to equivalent positions, only if they are fully recovered within 1 year from the recurrence of their work-related injury. The record demonstrates that the grievant was not "fully recovered" within 1 year from the recurrence of his injury in July 1990.(3) Specifically, the Arbitrator found that the grievant was not fully recovered until November 1991. Consequently, we find that, under 5 U.S.C. § 8151(b)(1), the Arbitrator correctly concluded that the grievant did not have a right to be restored to the sheet metal mechanic position. Id. Therefore, we conclude that the award is consistent with applicable law and regulations and we deny the Union's exception.
It is well settled that, to establish that an award is based on a nonfact, a party must show that the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993).
The Union has not demonstrated that the Arbitrator's finding that the grievant voluntarily accepted the clerk position either is the central fact underlying the award or is clearly erroneous. Accordingly, the Union has not demonstrated that the award is based on a nonfact.
C. Fair Hearing
We construe the Union's contention that the Arbitrator failed to properly judge the testimony of the witnesses and exhibits as a contention that the Arbitrator failed to consider evidence and, as such, failed to provide a fair hearing. An award will be found deficient on this ground when it is established that an arbitrator's refusal to hear or consider pertinent and material evidence, or other actions in conducting the proceeding, prejudiced a party so as to affect the fairness of the proceedings as a whole. See American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126 (1995).
The Union has not established that the Arbitrator refused to hear or consider pertinent or material evidence, or took any actions in conducting the proceeding which prejudiced the Union so as to affect the fairness of the proceedings as a whole. Accordingly, we deny this exception. See id.
The Union's exceptions are denied.
5 U.S.C. § 8151(b)(1) provides, in relevant part:
(b) Under regulations issued by the Office of Personnel Management--
(1) the department or agency which was the last employer shall immediately and unconditionally accord the employee, if the injury or disability has been overcome within one year after the date of commencement of compensation or from the time compensable disability recurs if the recurrence begins after the injured employee resumes regular full-time employment . . ., the right to resume his former or an equivalent position[.]
5 C.F.R. § 353.301(a) provides, in relevant part:
(a) Fully recovered within 1 year. An employee who fully recovers from a compensable injury within 1 year from the date eligibility for compensation began (or from the time compensable disability recurs if the recurrence begins after the employee resumes regular full-time employment . . .), is entitled to be restored immediately and unconditionally to his or her former position or an equivalent one.
(If blank, the decision does not have footnotes.)
1. The pertinent text of 5 U.S.C. § 8151(b)(1) and relevant regulations is set forth in an Appendix to this decision.
2. In 1995, OPM issued interim regulations clarifying 5 C.F.R. Part 353. See 60 Fed. Reg. 3063-67 (Jan. 13, 1995) and 60 Fed. Reg. 45650-57 (Sept. 1, 1995). The interim regulations did not change the definition of "fully recovered" in 5 C.F.R. § 353.102 that was in effect at the time the interim regulations were issued.
3. Because the grievant was not "fully recovered" within 1 year from the recurrence of his injury in July 1990, the Union's argument that the grievant was "fully recovered" within 1 year from a subsequent recurrence of his injury in