Laborers' International Union, of North America, Local 1396 (Union) and United States, Department of Health and Human Services, Indian Health Service, Rockville, Maryland (Agency)

[ v61 p715 ]

61 FLRA No. 143

LABORERS' INTERNATIONAL UNION
OF NORTH AMERICA,
LOCAL 1396
(Union)

and

UNITED STATES
DEPARTMENT OF HEALTH
AND HUMAN SERVICES
INDIAN HEALTH SERVICE
ROCKVILLE, MARYLAND
(Agency)

0-AR-4090

_____

DECISION

August 30, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This case is before the Authority on exception to an award of Arbitrator Jerome H. Ross filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition.

      The grievant was charged with one hour of absence without leave (AWOL) and grieved that action. The Arbitrator denied the grievance.

      For the following reasons, we deny the Union's exception.

II.     Background and Arbitrator's Award

A.      Background

      At a meeting with her supervisor, the grievant was issued a letter of reprimand for failure to meet deadlines. She returned to her office and was joined by another employee who had also received a letter of reprimand. Together they sought a meeting with the Agency's Deputy Director to request his advice on dealing with the letters of reprimand. They were told by his secretary to come to his office and he would meet with them when he finished a telephone call. They went to the Deputy Director's office without informing their supervisor, or anyone else, where they were going. They waited for approximately 20 minutes to meet with the Deputy Director and, ultimately, met with him for approximately 30 minutes. The supervisor checked their offices during the time they were with the Deputy Director and noted their absence.

      The supervisor had previously notified employees that if they planned to be out of the office for more than 15 minutes, then they needed to request leave. The supervisor had also specifically reminded the grievant that she needed to request leave in accordance with the procedures established in the parties' collective bargaining agreement (agreement). [*] 

      Upon their return to their offices, the grievant and the other employee met, individually, with their supervisor, who requested that they explain their absences. They explained that they had been with the Deputy Director. On the following morning, the grievant's supervisor notified her that she was being charged one hour AWOL. The grievant subsequently was issued a 3-day suspension based on the AWOL charge. The other employee was not charged AWOL and received no discipline.

      The grievant filed a grievance challenging the Agency's actions. At Step 2 of the grievance procedure, the Agency's decision stated that the 3-day suspension would be placed in abeyance for one year from the date of the decision letter to suspend. The decision further stated that if the grievant did not have any conduct issues during that one-year period, then the suspension would be expunged from her record. The decision did not reverse the AWOL charge and stated that the grievant was free to pursue her grievance on that issue. The AWOL charge was subsequently submitted to arbitration.

B.      Arbitrator's Award

      The Arbitrator stated the issue before him as follows: "Whether the AWOL was issued for just cause; and if not, what is the appropriate remedy?" Arbitrator's Award (Award) at 5.

      The Arbitrator found that the grievant "violated the requirements of Articles 3 and 12 and [the supervisor's] directive . . . when she left the office without seeking prior approval[.]" Id. at 9. In particular, applying Article 12, the Arbitrator found that: (1) the meeting with the Deputy Director was not an emergency situation; [ v61 p716 ] and (2) there was no evidence that the grievant was prevented from submitting a request for leave to her supervisor using the procedures set forth in the supervisor's directive. He also found that the grievant did not notify her supervisor of her absence upon her return from the meeting with the Deputy Director as required under Article 12, Section 2. He noted that failure to comply with these procedures could result in a charge of AWOL under Article 12, Section 2.d.

      The Arbitrator rejected the Union's claim that, under Authority precedent, the grievant should not have been charged with AWOL. He noted that the claim was based on precedent concerning sick leave. The Arbitrator stated that "a charge of AWOL and sick leave usage under legal requirements can be analogized, as the Union submits, to a charge of AWOL and leaving the work area without permission under the parties' contractual requirements." Award at 8-9. The Arbitrator found, however, that the Union "incorrectly" framed the issue as whether the grievant had a legitimate reason to leave the worksite. According to the Arbitrator, "the issue is whether the grievant had a legitimate reason for not contacting [her supervisor] and requesting leave, in accordance with the issued procedure, before leaving the office or immediately upon her return." Id. at 9.

      The Arbitrator found that the "grievant's misconduct does not warrant removal of the AWOL charge from her records and restoration of her pay." Id. at 11. Consequently, the Arbitrator denied the grievance.

III.     Positions of the Parties

A.      Union's Exceptions

      The Union maintains that the Arbitrator's award is deficient as a matter of law because he failed to distinguish between a charge of AWOL and a charge of failure to follow applicable procedures for requesting leave. Citing United States Dep't of the Air Force, Robins AFB, Warner Robins, Ga., 41 FLRA 635 (1991) (Robins AFB), the Union claims that an agency cannot base a charge of AWOL on a failure to follow proper leave request procedures without inquiring into the adequacy of the reasons for the absence. In support of its position, the Union also cites Brown v. National Archives and Records Admin., 92 MSPR 95 (2002) (Brown) and NFFE, Local 405, 42 FLRA 1112, 1128-29 (1991) (Local 405). The Union contends that the grievant had a legitimate reason to meet for an hour with the Deputy Director. The Union claims that it was legal error for the Arbitrator not to assess the legitimacy of that reason as a condition precedent to assessing the validity of the AWOL charge.

      Also citing Brown and Local 405, the Union asserts that "failure to follow proper leave request procedures is a basis for another charge and it is a reason to discipline [an employee], but it does not in itself justify an AWOL charge." Exceptions at 5 (emphasis in original). According to the Union, "[t]he fact that [the grievant] had no legitimate reason for not requesting permission from [her supervisor] to go meet [the Deputy Director] could certainly support disciplinary action for failure to follow established leave request procedures, but it cannot support the AWOL charge." Id. at 7.

B.      Agency's Opposition

      The Agency contends that the legal precedent relied on by the Union was presented to the Arbitrator and considered by him in rendering his award. According to the Agency, the Union's exception reflects only its disagreement with the Arbitrator's interpretation of that precedent as it relates to this case.

IV.     Analysis and Conclusions

      The Union's exception contends that the Arbitrator's award is contrary to law, in particular, Robins AFB and related precedent. The Authority reviews questions of law raised by exceptions to an arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority determines whether the award is consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making this determination, the Authority defers to an arbitrator's underlying factual findings. See id.

      The Union misinterprets Robins AFB. In that decision, the Authority held that the award was "contrary to 5 C.F.R. part 630, subpart D, pertaining to sick leave, because it sustain[ed] management's suspension of the grievant for AWOL based solely on the grievant's failure to follow established sick leave procedures." Robins AFB, 41 FLRA at 637. The Authority noted that, "[u]nder section 630.401, an agency is required to grant sick leave" in the instances set forth in the regulation, including instances when such a request is supported by "`administratively acceptable' evidence." Id. at 638. According to the Authority, "a failure to follow established agency sick leave procedures `cannot serve as a basis to sustain an AWOL charge'" where an employee has presented administratively acceptable evidence of incapacity during the period for which the employee was charged AWOL. Id. at 639 (quoting Atchley v. Dep't of the Army, 46 MSPR at 297, 302 (1990)).

      The Authority's decision in Robins AFB is based on application of 5 C.F.R. § 630.403, which requires [ v61 p717 ] the agency to grant an employee sick leave in certain circumstances. This case does not involve sick leave and the Union points to no regulatory requirement that would require the Agency to grant leave in the circumstances of this case. Similarly, the Union's reliance on Brown is misplaced. In that case, the MSPB noted that an adverse action against an employee on the ground that he was AWOL would not be sustained if it was shown that the employee was entitled to workman's compensation as a result of a work-related injury for the entire time period covered by the AWOL charge. See also Stith v. Dep't of Housing and Urban Development, 21 MSPR 328 (1984) (determination that employee entitled to workman's compensation warranted retroactive application to the employee's leave status and negation of the agency's charge of AWOL). No such circumstances are present here.

      The Union's reliance on Local 405 also is misplaced. There, the Authority found negotiable a proposal that required the agency to convert AWOL to an appropriate form of leave if it was determined that the employee's absence was excusable. Here, however, the Union also points to no contractual provision that would require the Agency to grant leave to the grievant in the circumstances of this case.

      Finally, contrary to the Union's argument, in the absence of a regulatory or contractual requirement that an employee be granted leave, a failure to follow leave request procedures can be the basis for an AWOL charge. See Goode v. Defense Logistics Agency, 45 MSPR 671 (1990) (where agency charged employee with failure to follow established leave procedures and AWOL for the same period, proof that the employee did not properly request leave supported finding that the agency properly denied leave and employee was AWOL as charged).

      The Union has not demonstrated that the Agency improperly denied the grievant leave for the period of her visit with the Deputy Director. The Union has therefore failed to demonstrate that the Arbitrator's award is deficient.

      Accordingly, we deny the Union's exception.

V.      Decision

      The Union's exception is denied.


APPENDIX

1.      Article 3, Section 3 of the parties' agreement provides as follows:

ARTICLE 3
EMPLOYEE RIGHTS, RESPONSIBILITIES AND PRIVILIGES

Section 3. Employee Communications
     This [a]greement does not prevent any employee from bringing matters of personal concern to any appropriate official in accordance with applicable laws, regulations, or agency policies. It is agreed and understood that employees of the Unit may request to communicate with a supervisory or management official of a higher level than the employee's immediate supervisor or with a representative of the servicing Human Resources (HR) office. The employee must coordinate with his/her immediate supervisor to leave his/her work area for this purpose (there must be a request made by the employee and both the employee and the supervisor must agree to the amount of time to be used and when the time can be taken). It is not necessary for the employee to explain the reasons for wanting to talk to any of the above officials. However, in the interest of mutual understanding[,] if the problem falls within the supervisor's scope of authority, resolution may be attempted at that level.

Award at 4-5.

2.      Article 12 of the parties' agreement provides, in pertinent part, as follows:

ARTICLE 12
LEAVE AND ABSENCE

Section 1. Management Responsibilities
. . . .
b.      Supervisors must establish procedures for receiving and responding to leave requests that their subordinate employees will be expected to adhere to. Such procedures must be consistent with the terms of this article, in written format and address. . . .
Section 2. Employee Responsibilities
. . . . [ v61 p718 ]
d.      Employees requesting unscheduled leave during their tour of duty must submit a request for leave and receive approval prior to the start of the leave unless the supervisor has established otherwise.  . . . An employee in an emergency situation or who is otherwise prevented from submitting their request using the established procedures must do so immediately upon return. Failure to comply with this provision, with no valid r