United States, Department of Veterans Affairs, Denver Regional Office Denver, Colorado (Agency) and American Federation of Government Employees, Local 1557 (Union)

[ v60 p235 ]

60 FLRA No. 51

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
DENVER REGIONAL OFFICE
DENVER, COLORADO
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1557
(Union)

0-AR-3802

_____

DECISION

September 15, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Daniel M. Winograd filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      The Arbitrator sustained a grievance alleging that the Agency violated the parties' collective bargaining agreement by refusing to grant administrative leave to employees who were prevented from reporting to work because of a snowstorm.

      For the reasons that follow, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      A major snowstorm caused the Agency, a Veterans Administration Regional Office (office), to close on March 18 and March 19. Employees received paid administrative leave for those days. The Regional Director reopened the office on March 20. Approximately half of the employees scheduled to work on March 20 reported for duty. Those employees who did not report for duty were charged either annual leave or leave without pay.

      The Union filed a grievance claiming the Agency violated the parties' agreement by denying administrative leave to employees unable to report to work on March 20. The grievance was unresolved and submitted to arbitration, where the parties stipulated the issue as follows:

Did management abuse its discretion by denying administrative leave to employees who did not make it to work on March 20, 2003? If so, what is the appropriate remedy?

Award at 2.

      The Arbitrator stated that, under VA Handbook 5011 (Handbook), an Agency regulation, if an emergency exists but an employee's office is open, then an employee who made "every reasonable effort to get to work" and was unable to reach his/her office may receive an excused absence. [n2]  Id. at 1. The Arbitrator further stated that under the Handbook, "an emergency situation may be caused by heavy snow . . . , must be general rather than personal in scope and impact . . . [and] should be severe enough to prevent employees in significant numbers from reporting for work . . . ." Id., citing Handbook, Part III, Chapter 2, § 12u.(1), Agency Exhibit 4 at 28.

      The Arbitrator found that there was a snow emergency on March 20, that the snow emergency was general in scope, and that substantial numbers of employees failed to arrive at work. See Award at 22. Under these circumstances, according to the Arbitrator, the Handbook provides that an absence without charge to leave may be authorized at the discretion of the Regional Director for those employees who made every reasonable effort to be at work. [ v60 p236 ]

      The Arbitrator stated that the case law relied on by the Union and Agency was in conflict. Specifically, the Arbitrator found that in United States Dep't of Justice, INS, Wash., D.C., 48 FLRA 1269 (1993) (Dep't of Justice), the Authority upheld an arbitrator's award determining that management abused its discretion by establishing a blanket order denying administrative leave to employees unable to report to work due to a snowstorm, while in Ga. Air Nat'l Guard, 81 LA 994 (1983), the arbitrator found that management had not abused its authority by creating an identical order. The Arbitrator stated that "in light of the role of the [Authority] in reviewing the arbitration awards and in creating precedents which apply across the broad spectrum of federal agencies, [he felt] compelled to follow the rule established in Dep't of Justice." Award at 23. Accordingly, the Arbitrator found that the Agency violated the parties' agreement and Handbook by adopting an arbitrary rule denying administrative leave to all employees who missed work on March 20.

      The Arbitrator denied the Union's request that all employees who were required to take annual leave or leave without pay be granted administrative leave for the day. Instead, the Arbitrator determined that employees who desire to have leave they were charged converted to administrative leave must submit a written request to the Regional Director who, within thirty days after the deadline for submitting requests, must: (1) grant the request; (2) deny the request; or (3) request additional information. The Arbitrator retained jurisdiction to resolve disputes concerning implementation of the award.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the Arbitrator erroneously relied on Dep't of Justice because that decision is not, as stated by the Arbitrator, "almost identical" in facts to this case. Exceptions at 5. In this regard, the Agency argues that Dep't of Justice involved whether the arbitrator's interpretation of an agency regulation was proper and not, as in this case, whether the Agency abused its discretion in denying administrative leave. According to the Agency, Ga. Air Nat'l Guard should control because it specifically dealt with this issue and the arbitrator in that case determined that the agency did not abuse its discretion by denying administrative leave to employees unable to report to work due to a snowstorm.

      The Agency also argues that the award is contrary to Chapter 2, § 12(u)(8)(a)(1) of the Handbook, which authorizes regional directors to "excuse employees . . . from reporting to duty up to two consecutive days." In this regard, the Agency contends that "by ordering the [Regional] Director to allow and consider employees' requests for conversion of their [charged] leave to administrative leave and make a reasoned decision on each request[, the award] is requiring the [Regional] Director, if such leave were approved, to violate the . . . Handbook[.]" Exceptions at 8.

      Relying on AFGE, 29 FLRA 1568 (1987) and Pitta v. Hotel Ass'n of N.Y. City, 806 F.2d 419 (2nd Cir. 1986) (Pitta), the Agency asserts that the Arbitrator exceeded his authority and was biased by retaining jurisdiction. The Agency claims that it is improper for arbitrators to render awards substantially affecting their compensation.

      The Agency further contends that the award fails to draw its essence from Articles 40 and 42 of the parties' agreement, which set forth the parties' grievance and arbitration procedures. In this regard, the Agency contends that the Arbitrator's retention of jurisdiction "effectively prevents" the Agency from utilizing the grievance and arbitration procedures for disputes arising over the Regional Director's granting or denial of administrative leave under the award. Exceptions at 9.

      Finally, the Agency maintains that the Arbitrator exceeded his authority by awarding relief to persons who are not encompassed within the grievance. In this regard, the Agency claims that although the grievance was limited to employees who were charged unscheduled annual leave or leave without pay for March 20, the Arbitrator's remedy directs that all employees be allowed to request administrative leave for that day.

B.     Union's Opposition

      The Union contends that the Authority has upheld arbitration awards that both granted and denied administrative leave based on "questions of fact under the applicable negotiated agreements[,]" and there is sufficient evidence in this case to support the Arbitrator's conclusion that the Agency violated the parties' agreement and Handbook by adopting an arbitrary rule denying administrative leave to all employees who missed work on March 20. Opposition at 3.

      According to the Union, the award does not require the Regional Director to perform an action that is contrary to law. The Union asserts that with regard to the issuance of leave in inclement weather situations, the Handbook permits excused leave for more than two consecutive days with approval by the appropriate central [ v60 p237 ] office or staff office head and that the parties' agreement does not limit the number of days that may be allowed.

      The Union also contends that the Arbitrator did not exceed his authority or demonstrate bias by retaining jurisdiction. In this regard, the Union asserts that such retention is consistent with the parties' agreement that any dispute over interpretation of an arbitrator's award shall be returned to the arbitrator for settlement.

IV.     Analysis and Conclusions

A.     The award is not contrary to law.

      Where a party's exceptions challenge the award's consistency with law, rule, or regulation, the Authority reviews the questions of law raised in the exceptions and the arbitrator's award de novo. See, e.g., NFFE, Local 1437, 53 FLRA 1703, 1709 (1998). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See id. at 1710. In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See NTEU, Chapter 50, 54 FLRA 250, 253 (1998).

1.     Authority case law.

      The Agency contends that the Arbitrator erroneously relied on Dep't of Justice in concluding that the Agency improperly denied administrative leave. According to the Agency, Ga. Air Nat'l Guard -- not Dep't of Justice -- "is on point and should control." Exceptions at 5.

      At the outset, we note that the Arbitrator appears to have misinterpreted Dep't of Justice. In this regard, the Arbitrator found that, in Dep't of Justice, "the FLRA found that management abused its discretion by establishing a blanket order requiring employees" to take leave on the day the agency's office reopened following a snowstorm. Award at 21. According to the Arbitrator, he felt "compelled to follow the rule established in Dep't of Justice." Id. at 23. In fact, the Authority did not find that management abused its discretion and did not make a "rule" in Dep't of Justice. Instead, the Authority merely denied agency exceptions to an award finding that the agency acted arbitrarily in denying disputed administrative leave. The Authority concluded, in this regard, that the agency had not established that the arbitrator's finding that it had discretion under an applicable regulation to grant the disputed leave conflicted with the regulation, or that the award was deficient based on management's right to assign work. See Dep't of Justice, 48 FLRA at 1275-77.

      Despite the Arbitrator's misinterpretation of Dep't of Justice, we deny this Agency exception.

      First, even though Dep't of Justice did not establish a rule requiring agencies to grant administrative leave in situations such as the one before the Arbitrator in this case, Dep't of Justice did uphold an award finding that an agency improperly denied administrative leave in such a situation. It does, therefore, provide support for the Arbitrator's ultimate conclusion that the Agency acted improperly in refusing to grant administrative leave here. We note, in this regard, that an award that is otherwise permissible may not be found deficient based on the arbitrator's reasoning. See United States Dep't of the Navy, Supervisor of Shipbuilding Conversion and Repair, Pascagoula, Miss., 57 FLRA 744, 746 n.5 (2002). In addition, the Arbitrator did not rely only on Dep't of Justice. In this regard, the Arbitrator discussed several decisions and awards, in addition to Dep't of Justice, and also relied on the Handbook, which he expressly interpreted as providing the Agency discretion to grant administrative leave to those employees who make every reasonable effort to be at work during a snow emergency. See Award at 22.

      Second, the Agency has not established that Ga. Air Nat'l Guard "is on point and should control." Exceptions at 5. As explained by the Arbitrator, Ga. Air Nat'l Guard is an arbitration award, not an Authority decision, and awards are not binding. See, e.g., AFGE, Local 2459, 51 FLRA 1602, 1606 (1996). Thus, the Agency's contention that the award conflicts with another arbitration award provides no basis for finding an award deficient under the Statute. See United States Dep't of Transp., FAA, Springfield, Ill., 39 FLRA 1036, 1043 (1991).

      Based on the foregoing, we find that the Agency has not demonstrated that the Arbitrator improperly relied on Authority case law, and we deny this exception.

2.     Agency regulation.

      The Agency argues that "by ordering the [Regional] Director to allow and consider employees' requests for conversion of their [charged] leave to administrative leave[,]" the award requires the Regional Director, "if such leave were approved," to violate § 12(u)(8)(a) of the Handbook, which authorizes regional directors to "excuse employees . . . from reporting to duty up to two consecutive days." Exceptions at 8.

      As noted by the Union, § 12(u)(8)(a)(2) of the Handbook provides that "[t]he appropriate Central [ v60 p238 ] Office administration or staff office head must approve any period of excused absence for field facility employees in excess of two consecutive workdays." Id., Exhibit 4 at 29. This provision indicates that the Regional Director may grant more than two consecutive days' excused leave if approved by higher-level management. As the award does not preclude the Regional Director from requesting approval from higher-level management for leave in excess of two days, we find that the Agency has not demonstrated that the award is contrary to the Handbook, and deny this exception. [n3] 

B.     The Arbitrator did not exceed his authority in rendering his award.

      The Agency contends that the Arbitrator exceeded his authority by retaining jurisdiction to resolve any disputes that arise over the Regional Director's decisions on employee requests for administrative leave made pursuant to the award.

      Arbitrators exceed their authority by failing to resolve an issue submitted to arbitration, resolving an issue not submitted to arbitration, disregarding specific limitations on authority, or awarding relief to persons who are not encompassed by the grievance. See United States Dep't of Defense, Army and Air Force Exchange Serv., 51 FLRA 1371, 1378 (1996) (Dep't of Defense). The Authority has uniformly upheld the retention of jurisdiction by arbitrators for the purpose of resolving disputes over implementation of an award. See, e.g., United States Dep't of Health and Human Servs., Food and Drug Admin., Kan. City Dist., 53 FLRA 422, 424 (1997).

      The Agency has not demonstrated that the Arbitrator's retention of jurisdiction in this case was improper. In particular, contrary to the Agency's claim, nothing in the award indicates that the Arbitrator retained jurisdiction in a manner inconsistent with a limit on his authority.

      Moreover, this case is distinguishable from AFGE and Pitta, relied on by the Agency. In those cases, as the disputes concerned the arbitrators' own employment for the duration of the parties' collective bargaining agreements, impermissible self-interest required disqualification of the arbitrators from resolving the disputes. Here, the Arbitrator's own employment was not at issue and his retention of jurisdiction was limited to the grievance before him. In this regard, the Authority in AFGE, and the court in Pitta, emphasized that an arbitrator need not recuse himself or herself from every decision that might have a bearing on his or her compensation. See AFGE, 29 FLRA at 1578-79; Pitta, 806 F.2d at 423-24.

      The Agency further contends that the Arbitrator exceeded his authority by awarding relief to persons who are not encompassed by the grievance. According to the Agency, the grievance concerned only employees who were not on scheduled leave for March 20, but the award permits employees to request administrative leave whether or not their leave was previously scheduled. However, the Arbitrator specified that the employees in issue "are those who were not scheduled to be on leave status on March 20 and who were not ill or disabled to the extent that they were eligible for sick leave." Award at 23 n.4. Thus, the Agency has failed to demonstrate that the award applies to employees not included in the grievance.

      Based on the foregoing, the Agency has not demonstrated that the Arbitrator exceeded his authority, and we deny this exception.

C.     The Arbitrator was not biased by retaining jurisdiction.

      To establish that an award is deficient because of bias, a party must establish that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of the party. See NAGE, Local R1-109, 58 FLRA 501, 504 (2003).

      The Agency has not offered any reason, apart from the Arbitrator's retention of jurisdiction over implementation of the award, that the Arbitrator was in any way biased against the Agency. Further, AFGE and Pitta, discussed above, do not support the Agency's claim of bias. In AFGE, the Authority specifically stated that it was not finding that the arbitrator was biased by retaining jurisdiction. See AFGE, 29 FLRA at 1579. In Pitta, the court stated that the arbitrator showed "apparent" bias because, as explained above, the issue of the grievance involved the arbitrator's own employment for an extended period of time. Pitta, 806 F.2d at 423-24. Here, as the Arbitrator's extended employment was not at issue, the "apparent" bias in Pitta is not present in this case. The Agency has not alleged that the award in this [ v60 p239 ] case was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the Arbitrator engaged in misconduct that prejudiced the rights of the Agency. As such, the Agency has not demonstrated that the Arbitrator was biased in retaining jurisdiction, and we deny this exception.

D.     The remedy does not fail to draw its essence from the parties' agreement.

      In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established 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 purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See, e.g., United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      The Agency contends that the Arbitrator's retention of jurisdiction fails to draw its essence from the arbitration and grievance procedure provisions of the parties' agreement because the Agency is effectively precluded from utilizing those procedures for disputes arising over the Regional Director's decisions on employee requests for administrative leave made pursuant to the award. However, nothing in those provisions precludes an arbitrator from retaining jurisdiction to resolve disputes over implementation of an award. As such, the Agency has not established that the Arbitrator's retention of jurisdiction is irrational or evidences a manifest disregard of the agreement. Accordingly, we find that the Agency has not demonstrated that the Arbitrator's remedy fails to draw its essence from the parties' agreement, and deny this exception.

V.     Decision

      The Agency's exceptions are denied.


Dissenting opinion of Chairman Cabaniss:

      As reasonable as the award appears to be, the Arbitrator still ruled against the Agency because the Arbitrator felt "compelled to follow the rule established in Dep't of Justice[,]" a rule which the majority has found not to exist or to otherwise be applicable. Majority Opinion at 6-7. I believe the award establishes more of a causal relationship between the two than found by the majority, and while the Arbitrator did indeed consider the other matters referenced by the majority, the Arbitrator still based his ultimate decision on an erroneous interpretation of precedent. Therefore, I would remand to the Arbitrator to provide him the benefit of this ruling as to the relevancy of that precedent, and obtain a new ruling free of this misinterpretation of our caselaw.



Footnote # 1 for 60 FLRA No. 51 - Authority's Decision

   Chairman Cabaniss' dissenting opinion is set forth at the end of this decision.


Footnote # 2 for 60 FLRA No. 51 - Authority's Decision

   VA Handbook 5011, Part III, Chapter 2, § 12u. provides, in pertinent part:

(3) Where it is determined that an employee . . . made every reasonable effort to get to work and was unable to do so, excused absence without charge to leave may be authorized.

      . . . .

(8)(a)1. Field facility heads are authorized to excuse employees . . . from reporting to duty up to two consecutive days . . . .
(8)(a)2. The appropriate Central Office administration or staff office head must approve any period of excused absence for field facility employees in excess of two consecutive workdays.

Agency's Exceptions, Exhibit 4 at 28-29.


Footnote # 3 for 60 FLRA No. 51 - Authority's Decision