46:1292(122)AR - - Red River Army Depot, Texarkana, TX and NAGE Local R-14-52 - - 1993 FLRAdec AR - - v46 p1292

[ v46 p1292 ]
The decision of the Authority follows:

46 FLRA No. 122










LOCAL R14-52





January 29, 1993


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on exceptions to an award of Arbitrator Royce S. Weisenberger 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 filed an opposition to the Union's exceptions.

An employee filed a grievance challenging the Agency's denial of her request for advanced sick leave. The Arbitrator denied the grievance.

For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant was absent from work for an extended period because of illness. When the grievant returned to work, she requested 240 hours of advanced sick leave to cover part of the absence. The Agency denied the request, and the grievant filed a grievance alleging that the denial violated the parties' collective bargaining agreement. When the grievance was not resolved, it was submitted to arbitration. As the parties did not stipulate the issue to be resolved, the Arbitrator framed it as follows:

The central issue in this grievance is whether the [Agency] violated the Collective Bargaining Agreement and/or any controlling laws or regulations by denying the [g]rievant's request for Advanced Sick Leave.

Award at 11.

The Arbitrator found, as relevant here, that resolution of the grievance depended on whether the grievant met the requirements for advancement of sick leave contained in Article XIV, section 10 of the parties' agreement.(*) More particularly, the Arbitrator found that the Agency's decision was based on subsections a and d of that provision.

With respect to subsection a, the Arbitrator noted that the grievant presented certificates documenting that she had been hospitalized and stating that she could return to work. However, the Arbitrator concluded that:

the [g]rievant's explanations about her health and recovery do not satisfy the requirement of Article XIV, Section 10.a. The simple statement "may return to work 9-19-91" does not satisfy that requirement. It was the burden of the Union and the [g]rievant to provide ". . . written evidence . . ." that the [g]rievant was expected by her physician to return to permanent duty. The Union and the [g]rievant did not satisfy that critical proof.

Id. at 16-17 (emphasis and ellipses in original). Based on his conclusion that the grievant had not satisfied the requirement of subsection a, the Arbitrator denied the grievance.

III. The First Exception

A. Positions of the Parties

The Union asserts that the award is based on a nonfact because the Arbitrator was "clearly in error with regard to the sufficiency of" the grievant's medical certification. Exceptions at 4. The Union maintains that, unless otherwise specified, the phrase "'may return to work,'" which was included in the certification, "signifies the employee is returning on a permanent basis . . . ." Id.

The Agency asserts that the Union has not demonstrated that the award is based on a nonfact because the Arbitrator's conclusion that the grievant's medical certification did not satisfy the requirements of the parties' agreement is not a fact. In the Agency's view, the Union's exception constitutes mere disagreement with the Arbitrator's interpretation of the parties' agreement.

B. Analysis and Conclusions

We will find an award deficient under the Statute because it is based on a nonfact if the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. U.S. Small Business Administration, Washington, D.C. and American Federation of Government Employees, Local 2532, 42 FLRA 890, 899 (1991) (SBA). The Union has not established that the award in this case is based on a nonfact.

The Arbitrator found that the Agency's denial of the grievant's request for advanced sick leave was proper because the medical certification she furnished did not satisfy the requirement of Article XIV, section 10, subsection a of the parties' agreement. The Union does not contend that the Arbitrator erred in determining that subsection a was applicable to the grievance and does not assert that the Arbitrator erroneously identified the certificate stating that the grievant "may return to work" as the document intended to comply with subsection a. The Union disputes only the Arbitrator's finding that the certificate did not satisfy the requirement of subsection a. As such, this exception addresses a conclusion of the Arbitrator, not a fact. In similar circumstances, we determined that "[a]s the disputed conclusions by the [a]rbitrator are not facts, the [u]nion has failed to demonstrate that the award is deficient because it is based on nonfacts." SBA, 42 FLRA at 899. We reach the same conclusion here and will deny this exception.

IV. The Second Exception

A. Positions of the Parties

The Union asserts that the Arbitrator's erroneous conclusion that the grievant's medical certificates did not satisfy the requirement of Article XIV, section 10, subsection a, "caused the remainder of his award to fail to conform to law, rule and regulation." Exceptions at 5. The Union claims that, because of the Arbitrator's error, the Arbitrator improperly "failed to order the agency to grant Grievant's request for [a]dvanced [s]ick [l]eave which the contract mandates . . . ." Id.

The Agency argues that the Union's exception does not demonstrate that the award is deficient and, instead, constitutes mere disagreement with the Arbitrator's interpretaion and application of the parties' agreement.