51:1720(145)AR - - NAGE, Local R1-109 & VA Medical Center, Newington, CT [ Veterans Administration ] - - 1996 FLRAdec AR - - v51 p1720
[ v51 p1720 ]
The decision of the Authority follows:
51 FLRA No. 145
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
DEPARTMENT OF VETERANS AFFAIRS
July 31, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator David P. Twomey 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 sustained the grievant's suspension for being absent without leave (AWOL); however, he reduced the penalty from 7 days without pay to 5 days without pay. In addition, the Arbitrator ordered that all references to insubordination be expunged from the grievant's record.
For the following reasons, we set aside the portion of the award concluding that there was just cause to suspend the grievant for 5 days without pay and remand the case to the parties for submission to the Arbitrator, absent settlement, to render a decision consistent with this opinion.
II. Background and Arbitrator's Award
The Agency suspended the grievant for 7 days for being absent without leave (AWOL) and insubordination for failing to carry out a supervisor's order. The employee filed a grievance over the suspension and when the grievance was not resolved, it was submitted to arbitration. The parties stipulated to the following issue to be resolved by the Arbitrator:
Was the April 14, 1994, seven work day suspension of [the grievant] for just cause and consistent with the Collective Bargaining Agreement? If not, what shall the remedy be?
Award at 1.
The Arbitrator determined that the grievant's supervisor instructed the grievant to obtain authorization to leave the facility from the Employee Health Center. Because the grievant failed to do this, the Arbitrator rejected the grievant's claim that he was authorized to leave the facility. The Arbitrator sustained the AWOL charge against the grievant.
However, the Arbitrator determined that there was no support for the insubordination charge alleged by the Agency. The Arbitrator stated that the Agency had not demonstrated that the grievant had feigned illness to avoid an undesirable work assignment. Crediting witness testimony, including the grievant's supervisor, the Arbitrator also stated that the grievant's actions were not characterized as insubordinate at the time the events took place. Therefore, the Arbitrator found that the Agency had failed to meet its burden of proof on the insubordination charge.
Accordingly, the Arbitrator ordered that the reference to insubordination be expunged from the grievant's record; that the grievant's 7-day suspension without pay be reduced to a 5-day suspension without pay; and that the grievant be made whole for the loss of 2 days' pay.
A. Union's Contentions
The Union contends that the award violates 5 C.F.R. § 630.401 (1) because, under that provision, the grievant was entitled to sick leave. The Union maintains that the Agency's policy was inconsistent with law and the parties' collective bargaining agreement. As a result, the Union argues that the grievant's failure to follow the Agency's policy resulted in the grievant's inability to present administratively acceptable evidence of his illness, as provided for in 5 C.F.R. § 630.403.(2)
B. Agency's Opposition
The Agency maintains that the Union's exceptions constitute mere disagreement with the Arbitrator's award and do not provide a basis for reviewing the award. Additionally, the Agency asserts that the award is consistent with law and the parties' collective bargaining agreement.
IV. Analysis and Conclusions
A. The Award is Inconsistent With 5 C.F.R. § 630.401(a)(2)
Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it conflicts with any law, rule or regulation. For purposes of section 7122(a)(1) of the Statute, the Authority has defined rule or regulation to include both Government-wide and governing agency rules and regulations. Overseas Education Association and U.S. Department of Defense Dependents Schools, Arlington, Virginia, 51 FLRA 1246, 1251 (1996). As the exception involves the award's consistency with an applicable Government-wide regulation, we review the questions of law raised by the Arbitrator's award and the Union's exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995).
The Authority will apply the Merit System Protection Board's (MSPB) law to disciplinary actions based on AWOL. U.S. Department of the Air Force, Robins Air Force Base, Warner Robins, Georgia and American Federation of Government Employees, Local 987, 41 FLRA 635, 639 (1991) (Warner Robins). Doing so, the Authority has held that an employee is entitled to sick leave, and may not be charged as AWOL, when the employee submits administratively acceptable evidence of illness prior to the disciplinary action.
An agency may require a medical certificate or other evidence to support the reason for an employee's absence. Miller v. Bond, 641 F.2d 997, 1003 (D.C. Cir. 1981). However, an employee's statement that he or she is ill may satisfy the administratively acceptable standard. Warner Robins, 41 FLRA at 638. If the employee has provided the agency with administratively acceptable evidence of incapacity, the employee's failure to follow sick leave procedures, standing alone, does not serve as a basis on which to sustain an AWOL charge. Id. at 639 (citing Atchley v. Department of the Army, 46 MSPR 297, 301 (1990)).
In this case, the Arbitrator sustained management's suspension of the grievant for 5 days without pay for AWOL solely on the basis of the grievant's failure to follow sick leave procedures, and never considered the issue of whether the grievant presented administratively acceptable evidence of illness. The Arbitrator stated that the Agency had not made out a case that the grievant was feigning his illness. However, this finding does not address whether the grievant provided sufficient evidence of illness within the meaning of 5 C.F.R. § 630.403.
Because the record in this case does not permit us to determine whether the grievant presented administratively acceptable evidence of illness prior to being charged as AWOL, we also are unable to determine whether the grievant was entitled to sick leave, and, therefore, whether the grievant properly was charged as AWOL. Accordingly, we set aside the portion of the award concluding that there was just cause to suspend the grievant for 5 days without pay and we will remand this case to the parties for submission to the Arbitrator for further proceedings consistent with this opinion.
On remand, absent settlement, the Arbitrator must determine whether the grievant's statement of incapacity to his supervisor constituted administratively acceptable evidence of illness, within the meaning of 5 C.F.R. § 630.403, thereby entitling the grievant to sick leave consistent with 5 C.F.R. § 630.401.
B. The Award Draws Its Essence From the Parties' Collective Bargaining Agreement
Because the Arbitrator sustained the Agency's action in this case, we will construe the Union's claim that the Agency's action is inconsistent with the parties' agreement as a claim that the award fails to draw its essence from the agreement. In this connection, other than a broad assertion that the Agency's policy is inconsistent with the parties' collective bargaining agreement, the Union provides no basis to conclude that the award is