United States, Department of the Air Force, 72ND Mission Support Group, Tinker Air Force Base, Oklahoma (Agency) and American Federation of Government Employees, Local 916 (Union)

[ v60 p432 ]

60 FLRA No. 85

UNITED STATES
DEPARTMENT OF THE AIR FORCE
72ND MISSION SUPPORT GROUP
TINKER AIR FORCE BASE, OKLAHOMA
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 916
(Union)

0-AR-3841

_____

DECISION

November 19, 2004

_____

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

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator William L. McKee 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 denied a grievance alleging that the Agency disciplined the grievant without just cause, but found that the Agency improperly denied the grievant leave during his incarceration. The Arbitrator ordered the Agency to correct the grievant's records to reflect either annual leave, and pay him for that leave period, or leave without pay (LWOP), if the grievant did not have any annual leave available.

      For the following reasons, we deny the Agency's exceptions.

II.      Background

      The grievant has been employed by the Agency for 15 years and works as an aviation technician with regularly scheduled work Monday through Friday. Award at 2. The grievant was arrested before work when he was stopped at a roadblock and found to be intoxicated. Id. The grievant was incarcerated for three workdays. The grievant missed work while incarcerated, but also missed work the day before his incarceration and the first four hours of his shift the day after his incarceration. Id.

      While incarcerated, the grievant called a friend who then contacted the grievant's supervisor to inform the supervisor that the grievant was incarcerated and could not report to work. Id. at 2-3.

      Upon returning to work, management informed the grievant that it "intended to discipline him for violations of attendance and reporting requirements." Id. at 3. As a result of the incident, the grievant was suspended for five days and charged as absent without leave (AWOL) and with a failure to adhere to the call-in procedures. Award at 4; Exceptions at 2 and Enclosure 2; Article 5, Section 5.04. In the Agency's Notice of Proposed Suspension, the Agency stated that the suspension was a result of both the failure to request leave and the unauthorized absences. [n1]  Exceptions, Enclosure 2.

      The Union filed a grievance alleging that there was no just cause for the discipline. The parties were unable to resolve the grievance and the matter went to arbitration. Id. The parties stipulated that the matter was properly before the Arbitrator and that the issue was "[whether] the five-day suspension of the [g]rievant [was] for just cause? If not, what is the proper remedy?" Id. at 1.

      The Agency argued that the grievant missed four and one-half days of work without requesting leave under the call-in procedures contained in the parties' agreement. [n2]  Id. at 4. According to the Agency, the grievant had been disciplined a year earlier for leaving work without permission. Id.

      The Union asserted that during the grievant's incarceration he only had two opportunities to make a phone call. Award at 5. The first opportunity came early the first morning, before supervisors report for duty and the second opportunity did not arrive until the afternoon of the day the grievant was released. Id. Finally, according to the grievant, the Agency will not accept a collect call. Id.

      According to the Arbitrator, the central issue of the grievance was whether the grievant, given his circumstances and his attempts to contact his supervisors, satisfied [ v60 p433 ] the requirements of the parties' agreement regarding call-in procedures. [n3]  Id. at 5. The Arbitrator found that the grievant's circumstances were not normal, as being incarcerated places severe limitations on communication. Id. The Arbitrator also determined that the grievant had tried, but failed to leave a message at work the first opportunity he had to use a telephone. Award at 5. The Arbitrator concluded that the telephone call from the grievant's friend notifying the Agency of the grievant's situation satisfied the requirements under the parties' agreement that someone notify the Agency of the grievant's status. Id. Because the grievant was incarcerated, the Arbitrator reasoned, the friend could not inform the Agency of the anticipated duration of the absence or a telephone number where the grievant could be reached. Id. The Arbitrator stated that the grievant "did the best he could to notify the Agency of his status." Id.

      After determining that the grievant followed the parties' requirements for requesting unscheduled leave during his incarceration, the Arbitrator addressed the grievant's absences during the period when he was not incarcerated. The Arbitrator explained that the grievant could not offer an explanation for his absence the day before his arrest. Id. at 6. In addition, the Arbitrator found that the grievant did not offer a justification for failing to follow reporting requirements the day he returned to work but missed the first four hours of his shift. Id.

      Based on his factual findings, the Arbitrator concluded that the absences during incarceration were due to abnormal circumstances and that annual leave or LWOP should have been granted. Id. As for the other twelve hours of unscheduled absence, the Arbitrator found that those absences warranted appropriate discipline. Id. The Arbitrator considered the Agency's discipline in light of his finding that the grievant had twelve hours of unscheduled absence and determined that the decision to suspend the grievant for five days was warranted. [n4]  Id. The Arbitrator denied the grievance, finding that there was just cause for the discipline, but that the Agency did not have cause to deny the grievant's leave for the period of his incarceration. Award at 7. The Arbitrator ordered the Agency to correct the grievant's records to "reflect either annual leave or [LWOP] if he had no annual leave available at the time" and stated that the grievant should be paid for the "days of annual leave, for a total of three days or for any part of a day, according to the amount of his unused leave balance, if any, at the end of the appropriate reference period." Id.

III.      Positions of the Parties

A.     Agency's Exceptions

      The Agency argues that the grievant was absent from work and no leave had been previously requested or was requested or approved during the absence. Exceptions at 2. According to the Agency, the issue submitted to arbitration was only whether the five-day suspension was appropriate. Id. at 2-3. The Agency alleges that the Arbitrator exceeded his authority when he went beyond the resolution of that issue and found that the Agency did not have cause to deny the grievant leave during his incarceration. Id. at 3. Recognizing that an arbitrator "must sometimes resolve factual or interpretation issues other than the ultimate issue upon which he is authorized to issue a binding award in order to make a proper decision in a case[,]" the Agency maintains that the issue of how much leave should have been granted to the grievant during his incarceration was not before the Arbitrator. See id.

      In addition, the Agency asserts that the Arbitrator exceeded his authority by ordering relief on an issue not submitted to arbitration. Id. at 3. The Agency argues that the "Arbitrator lacked the authority to order the Agency to retroactively grant the [g]rievant leave or pay him backpay . . . ." Id.

      The Agency also argues that the award "directs" the Agency to pay the grievant for three days of annual leave. Id. As such, the Agency contends that the award violates the Back Pay Act. Id. The Agency alleges that in order to award backpay, an arbitrator must find an employee was affected by an unjustified or unwarranted personnel action which resulted in a reduction or loss of pay. Exceptions at 3. According to the Agency, the Arbitrator did not make the necessary findings in this case. Id. Specifically, the Agency contends that the Arbitrator did not make a finding that had the grievant requested annual leave, it would have been granted. Id. [ v60 p434 ] In fact, the Agency argues, the grievant did not have any annual leave available when he was incarcerated. Id.

B.      Union's Opposition

      The Union asserts that the Arbitrator correctly considered the AWOL charge in this arbitration. Opposition at 4. According to the Union, the Agency's policy is to arbitrate issues only once and not split a cause of action. Opposition at 2-3. The Union maintains that when the grievant was charged AWOL for his absences, the matter was not yet resolved and the grievant could not file a grievance. Id. at 4. The Union argues that the Agency's own regulations prohibit an employee from grieving a notice of proposed action. Id. (citing AFI 36-704, July 22, 1994). The Union contends that the Agency is attempting to request that the cause of action be split, the opposite of its past policy. Id. at 4.

      The Union argues that the Arbitrator found that the Agency improperly denied the grievant leave during his incarceration and that the only action the award requires the Agency to take is to change the grievant's leave status during his incarceration from AWOL to LWOP. Id. at 5. According to the Union, the grievant did not have any annual leave available to cover the period of incarceration and that the benefit to the grievant is that his record will reflect fewer hours of AWOL time. Id.

IV.      Analysis and Conclusions

A.     The Arbitrator did not exceed his authority.

      In this case, the Agency alleges that the Arbitrator resolved an issue not submitted to arbitration, i.e., whether the grievant should have been granted leave for the period of his incarceration. Under Authority precedent, arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to those not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). Arbitrators do not exceed their authority by addressing any issue that is necessary to decide a stipulated issue, or by addressing any issue that necessarily arises from issues specifically included in a stipulation. See NATCA, MEBA/NMU, 51 FLRA 993, 996 (1996); United States Dep't of Justice, Immigration and Naturalization Serv., Honolulu Dist. Office, Honolulu, Haw., 43 FLRA 927, 935 (1992) (citing United States Dep't of Health and Human Servs., Austin, Tex., 40 FLRA 1035, 1041 (1991) (HHS)); Air Force Space Div., L.A. Air Force Station, Cal., 24 FLRA 516, 519 (1986) (Air Force Station).

      The parties stipulated that the issue was whether there was just cause for disciplining the grievant and if not, what the proper remedy was. The Agency disciplined the grievant for two alleged instances of misconduct, being AWOL over a period of four and one-half days and for failing to follow call-in procedures provided for in the parties' agreement. [n5]  Award at 3; Exceptions at 2; Article 5, Section 5.04. Therefore, the question of whether there was just cause for the discipline necessarily includes the propriety of both the AWOL allegation and the charge that the grievant failed to follow call-in procedures. See NATCA, MEBA/NMU, 51 FLRA at 996. In order for the Arbitrator to determine whether or not there was just cause for the suspension, he had to determine if the Agency correctly designated the grievant as AWOL for the entire duration of his absence.

      The Arbitrator, interpreting the procedures for requesting unscheduled leave set forth in the parties' agreement, concluded that the grievant had followed those procedures during his incarceration and therefore, was not AWOL and there was no just cause to discipline him for his absence during that period of time. Award at 6. Because the issue of the grievant's AWOL status was directly before the Arbitrator, the Arbitrator did not exceed his authority by determining that the Agency improperly designated the grievant as AWOL. NATCA, MEBA/NMU, 51 FLRA at 996.

      The Agency's exception also concerns whether the remedy awarded by the Arbitrator exceeded the arbitrator's authority. We note, in this regard, that the Authority grants the arbitrator broad discretion to fashion a remedy that the arbitrator considers to be appropriate. See United States Dep't of the Interior, United States Geological Survey, Nat'l Mapping Div., Mapping Applications Ctr., 55 FLRA 30, 33 (1998); AFGE, Local 916, 50 FLRA 244, 246-47 (1995) (citing Air Force Station, 24 FLRA at 519). In addition, the stipulated issue gave the Arbitrator the authority to fashion a remedy if he found the discipline was not based on just cause. The Arbitrator ordered the Agency to change the grievant's status to annual leave, if available, or LWOP for the period of his incarceration. Award at 7. The Arbitrator fashioned a remedy that was directly responsive to his finding that the Agency improperly designated the grievant as AWOL. United States Dep't of Labor, Bureau of Labor Statistics, Wash., D.C., 59 FLRA 533 [ v60 p435 ] (2003) (arbitrator did not exceed authority because the remedy was responsive to the issue of arbitration and fell within the broad discretion afforded an arbitrator to fashion an appropriate remedy); AFGE, Local 2382, 58 FLRA 270, 271 (2002) (Authority found that in the absence of any agreement provisions limiting the Arbitrator's discretion, his action of reducing the suspension to a warning clearly fell within the broad discretion the Authority gives to an arbitrator to fashion a remedy that the arbitrator considers to be appropriate); United States Dep't of Housing and Urban Development, 47 FLRA 1053, 1063 (1993) (Authority found that the arbitrator's award was "directly responsive" to the issue before the arbitrator and therefore the arbitrator did not exceed his authority); HHS, 40 FLRA at 1041 (The arbitrator acted within his authority when he determined that part of the disciplinary action was not based on just cause and reduced the penalty.)

      Based on the above, we find that the Arbitrator did not exceed his authority when he ordered the Agency to change the grievant's leave status from AWOL to LWOP for the time period covering his incarceration. United States Dep't of the Navy, Navy Inventory Control Point, Mechanicsburg, Pa., 59 FLRA 698, 698-99 (2004) (The arbitrator, stating that an Agency must show that the grievant engaged in action warranting discipline, did not exceed authority when he upheld the suspension, but ordered the disciplinary action to be expunged in six months if the grievant's record remained clear, because the remedy was directly responsive to the issue.) Although the Arbitrator found that there was no just cause for the discipline based on the period of the grievant's incarceration, the Arbitrator upheld the five day suspension because it "[was] not improper, given that the violations committed in the instant matter involved [twelve] hours of missed work." [n6]  See Award at 6.

B.      The award is not inconsistent with the Back Pay Act.

      The Agency also challenges the award's consistency with the Back Pay Act. An award is deficient under § 7122(a)(1) of the Statute if it is contrary to the Back Pay Act. See, e.g., United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Complex, Beaumont, Tex., 59 FLRA 466, 467 (2003). We review the question of law raised by the exception de novo. See, e.g., United States Dep't of the Navy, Commander, Military Sealift Command, Wash., D.C., 57 FLRA 930, 931 (2002); AFGE, Local 1203, 55 FLRA 528, 530 (1999). In applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Authority has long held that, under the Back Pay Act, an award of backpay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action has resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. See, e.g., United States Dep't of Health and Human Servs., 54 FLRA 1210, 1218-19 (1998).

      Although the Agency states that the award "directs the Agency to pay the grievant for three days of annual leave[,]" the Agency misconstrues the award. The Arbitrator stated in the award that "[a]nnual leave, or [LWOP] if annual leave was not available, should have been authorized for this period [of incarceration]" and ordered the Agency to correct the grievant's records to "reflect either annual leave or [LWOP] if he had no annual leave available at the time" and to pay the grievant "for the days of annual leave, for a total of three days or for any part of a day, according to the amount of his unused leave balance, if any, at the end of the appropriate reference period." Exceptions at 3; Award at 6-7.

      According to the Arbitrator's award, if the grievant did not have any annual leave available, then the Agency must only correct the grievant's records to reflect his status as LWOP during the period of his incarceration. The parties agree that the grievant did not have any annual leave available for the time period in question. Exceptions at 3 (citing Transcript at 82-83 (The grievant agreed that he had a negative leave balance during the period in question)); Opposition at 5. In these circumstances, the Agency is not directed to pay the grievant for the period of his incarceration because the Arbitrator ordered the Agency to pay only if annual leave was available.

      Therefore, the award is not inconsistent with the Back Pay Act because the Agency is not directed to restore any pay, allowance or differentials to the grievant. As a result, we deny the Agency's contrary to law exceptions.

V.      Decision

      The Agency's exceptions are denied. [ v60 p436 ]


APPENDIX

Article 5, Discipline and Counseling

Section 5.04: Notice of Proposed Actions and Notices of Final Decisions
a.     The employer will give Notices of Proposed Action for disciplinary actions taken under Section 5.06 of this Agreement. Said notices will advise the employee of his/her right to make a reply . . . .
c.      The decision to take action must be based on the charge(s) stated in the Notice of Proposed Action.
Award at 3.

Article 23, Annual Leave

Section 23.06: Call-in Procedures for Requesting Annual Leave
Employees should request emergency/unscheduled annual leave by contacting their immediate supervisor, or other persons designated to receive such requests, by telephone at the beginning of or as soon as possible after the start of their regular shifts and provide reasons for the request. Under normal circumstances, this call will be no later than two hours after the shift begins. . . . If the employee is not able to make the call, someone else may make it on their behalf and will state the reason(s) the employee was unable to call as well as the anticipated duration of the absence, and telephone number where the employee can be reached. The supervisor will contact the employee within two hours of the telephone call if the leave cannot be granted, otherwise, the employee may assume approval for the period requested, up to a period of three work days. If a request for unscheduled annual leave is denied, an employee may submit a SF-71, on which the supervisor will state the reasons for the denial and return it to the employee within one workday after receipt by the supervisor.
Award 4.



Footnote # 1 for 60 FLRA No. 85 - Authority's Decision

   In its Step 1 response to the grievance, the Agency official stated that the grievant "did not report to duty . . . nor did he request leave . . . ." Exceptions, Enclosure 2.


Footnote # 2 for 60 FLRA No. 85 - Authority's Decision

   The relevant language of the parties' agreement is set forth in the Appendix.


Footnote # 3 for 60 FLRA No. 85 - Authority's Decision

   The Arbitrator specifically considered Article 23, Section 23.06 which states, in relevant part:

Under normal circumstances, this call [a call requesting unscheduled leave] will be no later than two hours after the shift begins. . . . If the employee is not able to make the call, someone else may make it on their behalf and will state the reason(s) the employee was unable to call as well as the anticipated duration of the absence, and telephone number where the employee can be reached.
Award at 4.

Footnote # 4 for 60 FLRA No. 85 - Authority's Decision

   The Arbitrator specifically pointed to the grievant's previous discipline, a year prior, of a five day suspension for a four-hour reporting violation to support the suspension in this case.


Footnote # 5 for 60 FLRA No. 85 - Authority's Decision

   Article 5, Section 5.04 of the parties' agreement states "[t]he decision to take action must be based on the charg