American Federation of Government Employees, Local 505, National Immigration and, Naturalization Service Council (Union) and United States, Department of Homeland Security, Bureau of Citizenship and Immigration Services, Los Angeles District, Los Angeles, California (Agency)

[ v60 p774 ]

60 FLRA No. 146

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 505
NATIONAL IMMIGRATION AND
NATURALIZATION SERVICE COUNCIL
(Union)

and

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
BUREAU OF CITIZENSHIP
AND IMMIGRATION SERVICES
LOS ANGELES DISTRICT
LOS ANGELES, CALIFORNIA
(Agency)

0-AR-3855

_____

DECISION

March 28, 2005

_____

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 Lon Moeller filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency did not file an opposition to the Union's exceptions. [n1] 

      For the reasons discussed below, we deny the Union's exceptions.

II.      Background & Arbitrator's Award

      On February 28, 2003, the grievant suffered a work-related injury to her shoulder. [n2]  On April 3, 33 days after her injury, the grievant filed Form CA-1, "Federal Employee's Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation." [n3]  The grievant's claim for continuation of pay (COP) was denied because her Form CA-1 was not filed within 30 days of her injury. Award at 2. As of the date of the February 27, 2004 arbitration hearing, the grievant was on unpaid leave and had been off work since April 3, 2003.

      The Union filed a grievance alleging that the Agency violated the parties' agreement and "other applicable laws and regulations" by denying the grievant's request for COP and by taking various actions with regard to the grievant's use and accrual of different types of leave. Id.

      The parties were unable to stipulate to an issue. The Arbitrator framed the following issue: "[D]id the Agency violate the [parties' a]greement given the facts and circumstances presented by this grievance? If so, what should the remedy be?" Id. at 3. [n4] 

      The Arbitrator found that the grievant's COP claim was denied "because it was not filed within 30 days of the day of her workplace injury[.]" Award at 8. The Arbitrator found that: the grievant's supervisor gave her Form CA-1 and Form CA-16; the supervisor was "available to help [the grievant] fill out the CA-1 form"; and the supervisor "encouraged [the grievant] to fill out the CA-1 and to see a doctor." Id. The Arbitrator further found that there was not "a specific discussion about COP" because the grievant "told [her supervisor] that her shoulder `was better' and that she would not be filling out the CA-1 form." Id. at 8. Based on the record evidence, the Arbitrator found that the grievant's "delay in filing the CA-1 form cannot . . . be attributed to [the grievant's supervisor] or the Agency." Id. Consequently, the Arbitrator denied the portion of the Union's grievance relating to the denial of COP.

      As to the grievant's claims regarding the use and accrual of various types of leave, the Arbitrator found that "[l]ittle evidence was presented at the arbitration hearing to show how the Agency's actions . . . violated the [parties' a]greement." Id. at 7. In this regard, the [ v60 p775 ] Arbitrator found that the grievance did not "point to any specific contract violation as to these claims." Id. The Arbitrator concluded that, due to the "lack of evidence[,] . . . the grievance cannot be sustained" as to these matters. Id.

III.      Union's Exceptions

      According to the Union, 5 U.S.C. §§ 8118-8122 "state [that] a report of injury for COP must be made to an employee's immediate superior within 30 days." Exceptions at 1. In this connection, the Union asserts that the grievant informed her supervisor by e-mail "on the first workday following her injury and repeatedly informed her . . . of her deteriorating condition thereafter." Id. As a result, the Union contends that the grievant's filing of Form CA-1 "within 33 days" of her injury "was timely[.]" Id.

      Next, the Union contends that the Agency failed to comply with the parties' agreement and 20 C.F.R. § 10.211 because the grievant was not "counseled by trained personnel as to [her] right to file for compensation benefits and the benefits payable." Id. at 2. The Union also claims that the grievant's supervisor did not provide her with Form CA-16.

      The Union further contends that the grievant was "denied accrual of leave in pay periods in which she was in a combined paid and unpaid status" in violation of 5 C.F.R. § 630.202(a). [n5]  Id.

IV.      Analysis and Conclusions

A.      The award is not contrary to 5 U.S.C. §§ 8118-8122.

      We construe the Union's claim that the employee timely filed Form CA-1 as a claim that the Arbitrator's finding of untimeliness is contrary to law.

      The Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making such a determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      Generally, 5 U.S.C. §§ 8118-8122 concern compensation for on-the-job injuries. As relevant here, 5 U.S.C. § 8118 authorizes the payment of COP for an employee "who has filed a claim for a period of wage loss due to a traumatic injury with his immediate superior on a form approved by the Secretary of Labor within [30 days]." 5 U.S.C. § 8118 (emphasis added). Section 8119 provides that a notice of injury shall be given to the injured employee's immediate supervisor within 30 days of the injury by personal delivery or by depositing it in the mail and that such notice must: be in writing; state the name and address of the employee; state the year, month, day, hour, and location where the injury occurred; state the cause and nature of the injury; and be signed by and contain the address of the individual giving notice. See 5 U.S.C. § 8119. Section 8120 provides that the immediate supervisor of an employee who sustains an injury that results in death or probable disability shall report the injury to the Secretary of Labor. See 5 U.S.C. § 8120. Sections 8121 and 8122 describe how to make a claim for compensation for disability or death and the time limits for doing so. See 5 U.S.C. §§ 8121, 8122.

      The Union essentially contends that, because the grievant informed her supervisor of her injury by e-mail within 30 days, her filing of Form CA-1 was timely and entitled her to receive COP, even though the form was filed 33 days after the grievant's injury. However, there is nothing in the cited statutory provisions that entitles an employee, who notifies her supervisor of an on-the-job injury by e-mail, to extend or waive the time period for filing Form CA-1.

      Accordingly, we deny the Union's exception.

B.      The award draws its essence from the parties' agreement.

      To the extent the Union's exception that the Agency failed to counsel the grievant could be viewed as a claim that the Arbitrator misinterpreted the portion of the parties' agreement that requires counseling, we construe it as an essence claim.

      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 United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      The Union asserts that the Agency failed to comply with the portion of the parties' agreement that requires counseling because the grievant was not "counseled by trained personnel as to [her] right to file for compensation benefits and the benefits payable." Exceptions at 2. [n6]  However, in making that argument, the Union does not dispute the Arbitrator's findings that the grievant "received the CA-1 form from" her supervisor, the supervisor was "available to help [the grievant] [ v60 p776 ] fill out the CA-1 form[,]" and the supervisor "encouraged [the grievant] to fill out the CA-1 and to see a doctor." Award at 8. Additionally, the Union does not dispute the Arbitrator's finding that there was no "specific discussion about COP" because the grievant "told [her supervisor] that her shoulder `was better' and that she would not be filling out the CA-1 form." Id. Contrary to the Union's claim, the record establishes that the supervisor provided adequate counseling to the grievant inasmuch as the supervisor gave her the requisite form to complete, encouraged her to complete the form and seek medical attention, and was available to assist the grievant in filling out the form. See id. As such, the Union's exception fails to establish that the award is irrational, implausible, or otherwise deficient under the standard set forth above. [n7] 

      Accordingly, we deny the Union's exception.

C.      The Arbitrator did not exceed his authority.

      Where, as here, the parties fail to stipulate the issue, the arbitrator may formulate the issue on the basis of the subject matter of the grievance. See United States Dep't of Def., Educ. Activity, Arlington, Va., 56 FLRA 887, 891 (2000). The Authority accords substantial deference to the arbitrator's framing of the issue. See United States Dep't of the Army, Corps of Engineers, Memphis Dist., Memphis, Tenn., 52 FLRA 920, 924 (1997). Here, the Arbitrator framed the issue as whether "the Agency violate[d] the [parties' a]greement" and found that it had not. Award at 3.

      To the extent the Union's remaining claims can be viewed as challenging the Arbitrator's failure to find that the Agency violated either 5 C.F.R. § 10.211 or 5 C.F.R. § 630.202, we construe these exceptions as claims that the Arbitrator exceeded his authority by failing to resolve issues submitted to arbitration. [n8] 

      Arbitrators exceed their authority by failing to resolve an issue submitted to arbitration, resolv