34:0230(46)AR - NORFOLK NAVAL SHIPYARD and TIDEWATER VIRGINIA FEDERAL EMPLOYEES, METAL TRADES COUNCIL -- 1990 FLRAdec AR
[ v34 p230 ]
The decision of the Authority follows:
34 FLRA NO. 46 NORFOLK NAVAL SHIPYARD and TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL 0-AR-1568 DECISION January 11, 1990 Before Chairman McKee and Members Talkin and Armendariz. I. Statement of the Case This matter is before the Authority on exceptions to the award of Arbitrator H. Raymond Cluster. The Arbitrator sustained a grievance, in part, of an employee who was placed on unauthorized leave for 1 day and who was also given a 1-day suspension. The Tidewater Virginia Federal Employees Metal Trades Council, AFL - CIO (the Union) filed exceptions under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union alleges that the Arbitrator's award does not draw its essence from the negotiated agreement and that the award is based upon a nonfact. The Norfolk Naval Shipyard (the Agency) did not file an opposition to the exceptions. We conclude that the Union has failed to establish that the award is contrary to law, rule, regulation, or that it is deficient on other grounds as set forth in section 7122(a) of the Statute. Accordingly, we deny the Union's exceptions. II. Background and Arbitrator's Award The grievant is employed as an electrical worker at the Agency. On May 13, 1987, the grievant requested 8 hours of annual leave in order to see a doctor on May 15. Despite heavy workloads, the grievant's supervisor granted the grievant's request for annual leave on the condition that the grievant present a certificate from the doctor on returning to work. On May 18, the grievant returned to work and presented a doctor's certificate to his supervisor. The certificate, however, contained an illegible signature by the examining doctor, whom the grievant refused to identify. The supervisor subsequently revoked approval of the grievant's leave request, placed the grievant in an unauthorized leave status, and imposed a 1-day suspension. The Union grieved the supervisor's action. The Agency denied the grievance and the matter was submitted to arbitration. The Arbitrator found that the grievant could have requested sick leave for his medical appointment, in accordance with the provisions of the parties' collective bargaining agreement, rather than requesting annual leave. However, since the grievant requested annual leave, the Arbitrator determined that the grievant's supervisor had the authority, under the agreement, to impose the condition that the grievant provide a doctor's certificate. The Arbitrator found that the grievant agreed to abide by this condition. When the grievant failed to produce a legible doctor's certificate, however, the grievant failed to comply with the agreed-upon condition. The Arbitrator found that although disciplinary action was appropriate, placing the grievant on unauthorized leave and giving him a 1-day suspension was too severe. Thus, the Arbitrator sustained the suspension and directed that the 8 hours of unauthorized leave be charged to sick leave. III. Union's Exceptions The Union's first exception is that the Arbitrator's award does not draw its essence from the collective bargaining agreement provisions pertaining to annual and sick leave. The Union argues that the agreement does not require an employee to provide a doctor's certificate before or after requesting annual leave. As to sick leave, the Union claims that the agreement requires a doctor's certificate only when an employee is on sick leave for more than 3 days or when the employee previously has been found to have abused sick leave privileges. The Union asserts that since the Arbitrator placed the grievant on paid, approved sick leave status for May 15, 1987, the grievant was not on unauthorized leave and, therefore, should not have been given a 1-day suspension. The Union's second exception states that the Arbitrator's award was based on a nonfact. The Union claims that the Arbitrator improperly relied on the dispute between the grievant and his supervisor over the medical certificate as the basis for the disciplinary action when the basis for such action was the grievant's unauthorized absence. IV. Analysis and Conclusion We conclude that the Union has failed to establish that the Arbitrator's award is contrary to any law, rule, or regulation or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases. In order for an award to be found deficient as failing to draw its essence from the agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. Pension Benefit Guaranty Corporation and National Treasury Employees Union, Chapter 211, 32 FLRA 141, 145 (1988). In the present case, the Union has failed to demonstrate that the Arbitrator's denial of the grievance concerning the 1-day suspension was not based upon the collective bargaining agreement between the parties. On the contrary, the Arbitrator relied on the collective bargaining agreement to find that the grievant's supervisor had the authority to establish the condition of providing a doctor's certificate in approving the grievant's annual leave request. Therefore, we find that this exception does not provide a basis for finding the award deficient. The Union's second exception also provides no basis for finding the award deficient. Where an exception claims that an arbitrator improperly relied upon a nonfact, the asserting party has the burden of proving that the central fact underlying the award is concededly erroneous, a gross mistake of fact, and that but for the arbitrator's reliance upon such fact, a different result would have been reached. U.S. Patent and Trademark Office and Patent Office Professional Association, 32 FLRA 1168 (1988). In this case, the Union has not established that the facts relied on by the Arbitrator are erroneous or gross mistakes of fact. Rather, the Union's exception is nothing more than disagreement with the Arbitrator's findings of fact and does not provide a basis for finding the award deficient. See American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 32 FLRA 53 (1988). V. Decision The Union's exceptions are denied.