Bremerton Metal Trades Council (Union) and United States Department of the Navy, Puget Sound Naval Shipyard and Intermediate Maintenance Facility, Bremerton, Washington (Agency)

[ v62 p391 ]

62 FLRA No. 74

BREMERTON METAL TRADES COUNCIL
(Union)

and

UNITED STATES
DEPARTMENT OF THE NAVY
PUGET SOUND NAVAL SHIPYARD
AND INTERMEDIATE
MAINTENANCE FACILITY
BREMERTON, WASHINGTON
(Agency)

0-AR-4081

_____

DECISION

May 6, 2008

_____

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

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Edwin R. Render 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 filed an opposition to the Union's exceptions.

      The Arbitrator determined that the Agency properly denied a request for sick leave under the Family and Medical Leave Act (FMLA), 5 U.S.C. § 6381 et seq[n1]  at the time when the grievant was serving an indefinite suspension pending his appeal of a revocation of his security clearance. For the following reasons, we deny the Union's exceptions.

II.      Background and Arbitrator's Award

      In 2002 the Agency revoked the grievant's security clearance. Award at 3. As a result, the grievant became ineligible to work as the position he encumbered required a security clearance. Subsequently, the Agency proposed to terminate him, but ultimately agreed to place the grievant on an indefinite suspension pending the grievant's appeal of the security clearance revocation.

      During the appeals process, and while he was serving the indefinite suspension, the grievant experienced chest pain and requested sick leave under the FMLA. The Agency rejected this request and the grievant filed a grievance. When the grievance was not resolved in the grievant's favor, the Union submitted the matter to arbitration, where the parties stipulated to the following issue:

Did the Employer violate the Family Medical Leave Act by not allowing the [g]rievant the opportunity to use sick leave after his security clearance was revoked; if so, what is the appropriate remedy?

Id. at 2.

      The Arbitrator found that, under the terms of the FMLA, an employee is entitled to FMLA leave where the employee is unable to work because of a "serious health condition[.]" Id. at 15. Here, by contrast, the Arbitrator found that the grievant was unable to work because he no longer had the required security clearance for his position. Specifically, the Arbitrator found "[t]he fact that the [g]rievant incurred a serious heart condition which rendered him unable to work after he was suspended does not alter the fact that the fundamental reason for him being off work was a security clearance revocation."  [n2]  Id. (Emphasis in the original.)

      Additionally, the Arbitrator rejected the Union's argument that Ellshoff v. Dep't of the Interior, 76 M.S.P.R. 54 (1997), rev'd on other grounds, 78 M.S.P.R. 615 (1998) (Ellshoff) would lead to a different result. The Arbitrator determined that the case here was "[c]onceptually" different from the one in Ellshoff. Award at 16. According to the Arbitrator, in Ellshoff the grievant had a serious medical condition that prevented her from doing her job whereas here, the grievant was prevented from doing his job because he was suspended. See id. Accordingly, the Arbitrator rejected the Union's argument that the grievant was [ v62 p392 ] entitled to FMLA leave while on an indefinite suspension.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union claims that the grievant was denied his rights under the FMLA because the Arbitrator misinterpreted 5 C.F.R. § 630.1208(k). [n3]  Specifically, the Union argues that 5 C.F.R. § 630.1208(k), which references part 432 (performance based actions) and part 752 (adverse actions) of Title 5 of the Code of Federal Regulations, does not preclude the grievant from being entitled to leave under the FMLA. In this respect, the Union argues that the grievant was not on indefinite suspension for disciplinary reasons, but rather the grievant's security clearance was removed for national security interests under 5 U.S.C. § 7532(a).

      Moreover, the Union argues that even assuming that the loss of a security clearance is an adverse action under 5 C.F.R. § 630.1208(k), the grievant would have been entitled to FMLA leave. The Union asserts that under 5 C.F.R. § 630.1208(k) employees can invoke leave under the FMLA regardless of whether they are undergoing performance or adverse action proceedings under parts 432 or 752. The Union also claims that the Arbitrator misinterpreted Ellshoff in that Ellshoff supports the proposition that employees facing adverse actions may nonetheless receive leave under the FMLA. As such, the Union argues that the grievant is "entitled to evoke [sic] FMLA for the times he was under doctor's care while on indefinite suspension." Id. at 4. In this respect, the Union claims that "[t]here is nothing in the C.F.R. stating the [g]rievant cannot evoke [sic] [the] FMLA while in an indefinite suspension." Id. at 5.

      The Union also asserts that another employee who was also placed on an indefinite suspension while appealing the removal of his security clearance was allowed to use sick leave. As such, the Union claims that the Agency violated the parties' agreement by failing to treat the two employees in a fair and equitable manner and as a result the award fails to draw its essence from the agreement. Id. at 4.

      Finally, the Union argues that the award is based on nonfacts because the Arbitrator erred in stating the job titles for two Agency witnesses, erred in his understanding of the security clearance process, and erred in finding that the grievant's indefinite suspension was a disciplinary action. Id. at 2-3. The Union also argues that the Arbitrator failed to specifically credit a past practice that allowed employees who lost their security clearances and were on indefinite suspensions to have sick leave requests granted. Id. at 3.

B.     Agency's Opposition

      The Agency contends that the Arbitrator did not rely on 5 C.F.R. § 630.1208(k) in rendering his award. In this respect, the Agency argues that the Arbitrator merely determined that the grievant was unable to perform his work because of the removal of his security clearance, not from a "serious health condition" under the FMLA. Opposition at 3. The Agency also argues that, to the extent the Union claims that the revocation of the security clearance was not a disciplinary action, the claim is irrelevant because it has no bearing on the Arbitrator's conclusion that the grievant was not entitled to sick leave under the FMLA. Finally, the Agency contends that Ellshoff is distinguishable and does not apply here.

      Furthermore, the Agency argues that to the extent the Union's exception claims that the Arbitrator failed to "acknowledge a past practice" concerning its treatment of another employee in similar circumstances, such an argument "provides no basis for finding an award deficient." Opposition at 5 (citing NAGE, Local R14-77, 40 FLRA 342, 347 (1991)). The Agency argues that whether a past practice existed is a factual determination left to the Arbitrator. Opposition at 5. Finally, the Agency argues that none of the alleged nonfacts would have an "effect on the [Arbitrator's] decision." Opposition at 5.

IV.      Analysis and Conclusions

A. The Award is Not Contrary to the Family and Medical Leave Act.

      When a party's exception challenges an arbitration award's consistency with law, rule, or regulation, the Authority reviews the questions of law raised in the exception and the arbitrator's award de novo. See NFFE, Local 1437, 53 FLRA 1703, 1709 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's factual findings. See NTEU, Chapter 50, 54 FLRA 250, 253 (1998).

      [ v62 p393 ] The Union claims that the grievant was denied his rights under the FMLA because the Arbitrator misinterpreted 5 C.F.R. § 630.1208(k). Under 5 C.F.R. § 630.1208(k) an agency may pursue a performance or adverse action against an employee even where the employee has requested FMLA leave. However, contrary to the Union's assertion, nothing in 5 C.F.R. § 630.1208(k) requires an agency to grant FMLA leave in circumstances where such leave is not otherwise appropriate. Here, whether the grievant's suspension was or was not an adverse action has no bearing on the case because the grievant's illness occurred after he was placed on an indefinite suspension. See Award at 15.

      In this respect, the FMLA entitles an employee to 12 workweeks of leave where, among other circumstances, the employee suffers a "serious health condition that makes the employee unable to perform the functions of the employee's position." 5 U.S.C. § 6382(a)(1)(D). Here, as the Arbitrator found that the basis for the grievant's inability to perform his job was the loss of his security clearance and placement on an indefinite suspension, a fact to which we defer, the Union has not shown any statutory basis entitling the grievant to leave under the FMLA. See generally, Abramson v. Dep't of Homeland Security, 2006 MSPB Lexis 5366 (2006) (where agency action was not predicated on leave related conduct and the appellant was already on administrative leave, there was no reason to grant FMLA leave).

      Finally, the Union argues that the grievant is "entitled to evoke [sic] FMLA for the times he was under doctor's care while on indefinite suspension" and that "[t]here is nothing in the C.F.R. stating the [g]rievant cannot evoke [sic] [the] FMLA while in an indefinite suspension." Exceptions at 4-5. However, the Union fails to establish any basis under which the grievant would be entitled to sick leave under the FMLA. In this regard, 5 U.S.C. § 6382 provides for an entitlement to this leave where a "serious health condition," not a loss of a security clearance, is the reason for an employee being unable to perform the functions of his position. Consequently, as the Union failed to meet any of the criteria set forth in 5 U.S.C. § 6382(a)(1), we deny the Union's contrary to law exception.

B. The Award Does Not Fail to Draw its Essence from the Parties' Agreement.

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); AFGE, Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes 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 Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      The Union asserts that the Agency violated the parties' agreement by failing to treat the grievant in a fair and equitable manner and as a result the award fails to draw its essence from the agreement. Exceptions at 4. However, the Union neither cites the contract language in dispute nor does the record reflect that the Union raised this issue before the Arbitrator. Under § 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented to the arbitrator. See, e.g., United States Dep't of the Air Force, Air Force Materiel Command, Robins Air Force Base, Ga., 59 FLRA 542, 544 (2003). Accordingly, as the Union did not raise this argument before the Arbitrator, and it cannot be raised for the first time before the Authority, the Union's exception is dismissed. See 5 C.F.R. § 2429.5.

C.      The Award is Not Based on Nonfacts.

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See NFFE, Local 1984, 56 FLRA 38, 41 (2000). However, the Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. See id.

      The Union claims that the Arbitrator erred in stating the job titles for two Agency witnesses, erred in his understanding of the security clearance process, erred in finding that the grievant's indefinite suspension was a disciplinary action and erred by failing to credit a past practice that allowed employees who lost their security clearance and were on an indefinite suspension to have sick leave requests granted. The Union, however, has not shown how any of these alleged nonfacts would have had an impact on the Arbitrator's conclusion. In [ v62 p394 ] this respect, the Arbitrator found that the grievant was unable to work because of the loss of his security clearance and, as such, he did not meet any of the qualifying conditions for FMLA leave as set forth in 5 U.S.C. § 6382(a)(1). As such, because none of the alleged nonfacts are central to the Arbitrator's determination, the Union has failed to show that the Arbitrator would have reached a different result. Consequently, we deny the Union's exception.

V.     Decision

      The Union's exception contending that the award fails to draw its essence from the parties' agreement pursuant to 5 C.F.R. § 2429.5 is dismissed and the remaining exceptions are denied.


Appendix

FAMILY AND MEDICAL LEAVE

5 U.S.C. § 6382. Leave requirement

(a)(1) Subject to section 6383, an employee shall be entitled to a total of 12 administrative workweeks of leave during any 12-month period for one or more of the following:

(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
(D) Because of a serious health condition that makes the employee unable to perform the functions of the employee's position.



Footnote # 1 for 62 FLRA No. 74 - Authority's Decision

   The Family and Medical Leave Act, 5 U.S.C. § 6381 et seq., governs leave for Federal Civil Service employees. The Family and Medical Leave Act, as it pertains to this case, is set forth in the Appendix.


Footnote # 2 for 62 FLRA No. 74 - Authority's Decision

   The grievant was placed on an indefinite suspension because he lost his security clearance under 5 U.S.C. § 7532. However, at issue here is not the loss of the security clearance, but whether he could take sick leave under the FMLA while on his indefinite suspension. Accordingly, as the issue before the Authority does not concern the employee's suspension under 5 U.S.C. § 7532,