34:0544(91)AR - - Naval Aviation Depot, Navy, Norfolk, Virginia and IAM Local 39 - - 1990 FLRAdec AR - - v34 p544

[ v34 p544 ]
The decision of the Authority follows:

34 FLRA No. 91












January 24, 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 Roy D. Cromwell.

A grievance was filed over the 3-day suspension of the grievant for falsifying a material fact and for an unauthorized absence in connection with his request for sick leave for a 3-day absence. The Arbitrator rescinded the suspension and substituted a warning to the grievant that continued absences could result in further disciplinary action including removal.

International Association of Machinists and Aerospace Workers Local 39 (the Union) filed exceptions to the award 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 Naval Aviation Depot (the Activity) did not file an opposition to the exceptions.

The Union has failed to establish that the award is deficient on any of the grounds set forth in section 7122(a) of the Statute. Accordingly, we will deny the exceptions.

II. Background

The grievant was absent from work on May 6, 7, and 8, 1987. On the morning of May 8, he phoned a secretary in his division and stated: "I have the flu. Doctor instructed me to be off until Monday, May 11, 1987." Arbitrator's Award at 1. The grievant had been absent on 63 occasions in 1986 and 15 occasions in the first 4 months of 1987, and had previously been warned concerning his abuse of sick leave.

After the grievant's phone call on May 8, the Activity had an investigator place the grievant's home under surveillance. The investigator observed the grievant leave his home at approximately 1 p.m. The investigator followed the grievant to another house, where the grievant remained for approximately 30 minutes before returning to his home. The grievant again departed his home at approximately 3:15 p.m. The investigator lost the grievant after following him for 15 minutes and the surveillance was discontinued.

On Monday, May 11, the grievant submitted a leave slip requesting 24 hours of sick leave and attached a note from a doctor. The note was dated May 7, 1987, and stated: "p[atien]t seen in my office today." Arbitrator's Award at 1. The note did not advise how long the grievant should have been absent or contain any other information.

The investigator who observed the grievant on May 8 interviewed the doctor who signed the note. The doctor stated his opinion to the investigator that the flu symptoms described by the grievant would not have precluded the grievant from working on May 6 or 8. The doctor also stated that the note covered only the 2 hours required for the visit to the doctor's office. On the basis of all this information, the Activity refused to approve the grievant's sick leave request for May 8 and suspended the grievant for 3 days because of his falsification of a material fact with respect to his sick leave request and because of his unauthorized absence on May 8.

A grievance was filed over the suspension and submitted to arbitration.

III. The Arbitrator's Award

The Arbitrator rescinded the suspension. The Arbitrator found that the evidence did not establish that the grievant was advised by the doctor that he could return to work on May 8. Despite the grievant's activities on May 8, the Arbitrator also found that the evidence was insufficient to determine that the grievant could have worked on May 8. However, on the basis of evidence of the grievant's excessive absences, the Arbitrator determined that it was appropriate for the Activity to issue the grievant a warning that "continued absences for whatever reason may result in further disciplinary action up to [removal]." Arbitrator's Award at 3.

IV. Union's Exceptions

The Union contends that the award is deficient because: (1) the Arbitrator's warning was issued without the receipt of evidence and testimony concerning the grievant's absences; (2) the Arbitrator's warning violated the parties' collective bargaining agreement; and (3) the Arbitrator's award allowing that a warning be given to the grievant "amended the Navy's Standard Schedule of disciplinary action (Inst. 12750) by not providing a reckoning period." Exceptions at 1.

V. Discussion

We conclude that the Union's exceptions provide no basis for finding the award deficient on any grounds set forth in section 7122(a) of the Statute. The Union has failed to establish that the award is deficient because the award is contrary to 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.

The Union's first and second exceptions constitute mere disagreement with the Arbitrator's evaluation of evidence and testimony and his interpretation and application of the collective bargaining agreement. These exceptions provide no basis for finding the award deficient. See, for example, Food and Drug Administration, Region II and American Federation of Government Employees, C