40:0947(78)AR - - AFGE and Air Force Logistics Command - - 1991 FLRAdec AR - - v40 p947

[ v40 p947 ]
The decision of the Authority follows:

40 FLRA No. 78











May 24, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Hugh R. Catherwood filed by the Union 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 Agency did not file an opposition to the Union's exception.

The Arbitrator denied a grievance over a counseling letter received by the grievant regarding his use of sick leave. For the following reasons, we find that the Union has failed to establish that the award is deficient. We will, therefore, deny the exception.

II. Background and Arbitrator's Award

On October 23, 1990, the grievant received a letter entitled "Sick Leave Counseling" from his supervisor. The letter stated that a review of the grievant's sick leave usage for the period January 1, 1990, to that date showed that he had earned 84 hours of sick leave and had used 160 hours. Summarizing the grievant's sick leave usage, the letter noted that the grievant's record showed 27 absences on sick leave, 7 of which were supported by written statements from physicians.

A grievance was filed over the counseling. The grievance was not resolved and was submitted to arbitration.

As a preliminary matter, the Arbitrator determined that the grievance was procedurally arbitrable. The parties agreed that the following issue was before the Arbitrator: "Was the counselling of the [g]rievant, . . . for just cause and in accordance with the Master Labor Agreement and other applicable laws, rules, and regulations?" Award at 1.

On the merits, the Arbitrator concluded that he could "find no reason to fault [the grievant's supervisor] . . . for imposing a non-disciplinary penalty." Id. at 2. The Arbitrator noted the testimony of the grievant's supervisor that, while all the grievant's absences had been authorized, the supervisor believed that the grievant had not actually been ill on some occasions. In this regard, the supervisor testified that the "so-called doctor certificates . . . had in fact been merely forms signed by a nurse and gave no indication of the nature or degree of the claimed illness." Id. The Arbitrator also noted the supervisor's testimony that the grievant's absences had caused her to assign his work to another employee when that person was needed at his regular post, that the grievant had often taken sick leave on Mondays and Fridays, and that when the grievant's sick leave was exhausted, he had frequently taken annual leave or leave without pay.

The Arbitrator concluded that the grievant's absences fit the criterion of Section 24.03(a)(5) of the parties' collective bargaining agreement regarding identification and correction of sick leave abuse.(*) That subsection provides that one indication of sick leave abuse is "[i]ntermittent sick leave use of short duration with vague excuses." The Arbitrator acknowledged that the "fact that the [g]rievant took leave without pay on some occasions certainly indicates that at those times he was genuinely ill," but, the Arbitrator noted, "from the point of view of management, an employee who is so often absent, requiring a substitute to be taken off work where he is badly needed, is simply an unfair burden." Award at 2. Accordingly, the Arbitrator denied the grievance.

III. The Union's Exception

The Union contends that the Arbitrator's award is contrary to law, that the Arbitrator exceeded his authority and that "the tolerable bounds of reasonableness were breached by the Arbitrator in the rendering of the award." Exception at 1.

The Union states that the counseling letter refers to the grievant's alleged use of sick leave during periods of heavy workload and in connection with weekends and holidays. The Union argues that these allegations meet the "requirements" set forth in section 24.03(a)(3) and (4) of the collective bargaining agreement and not the criterion set forth in section 24.03(a)(5) relied upon by the Arbitrator. Accordingly, the Union argues that the Arbitrator exceeded his authority under law and the parties' collective bargaining agreement by determining that the Agency had just cause to counsel the grievant because his sick leave use met the criterion set forth in Section 24.03(a)(5). The Union notes that Section 7.06(a) of the parties' collective bargaining agreement provides that an "arbitrator's authority is limited to deciding only the issue or issues considered in the formal grievance." The Union argues that the only issue properly before the Arbitrator was whether the grievant's conduct constituted leave abuse under section 24.03(a)(3) and (4) because those were the only indications of sick leave abuse specifically described in the counseling letter.

IV. Analysis and Conclusions

We conclude that the Union has not established that the Arbitrator's award is deficient. The Union asserts that the award is "contrary to and not within the spirit, intent and general character of the law." Exception at 1. However, the Union cites no law with which the award allegedly conflicts and none is apparent to us. Accordingly, we reject the Union's assertion. See, for example, U.S. Department of Transportation, Federal Aviation Administration, Springfield, Illinois and National Air Traffic Controllers Association, 39 FLRA 1036, 1041 (1991).

The Union also asserts that the Arbitrator exceeded his authority. An arbitrator exceeds his or her authority when he or she issues an affirmative order that goes beyond the scope of the matter submitted to arbitration. See, for example, General Services Administration, Region VII, Fort Worth, Texas and American Federation of Government Employees, Council 236, 35 FLRA 1259, 1265-66 (1990).

In this case, the parties stipulated that the Arbitrator was to decide whether t