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49:0018(4)AR - - Navy, Naval Air Warfare Center, Aircraft Division, Indianapolis, IN and AFGE, Local 1744 - - 1994 FLRAdec AR - - v49 p18

[ v49 p18 ]
The decision of the Authority follows:

49 FLRA No. 4











LOCAL 1744





FEBRUARY 4, 1994


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 Louis V. Imundo, Jr. filed by the Agency 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 did not file an opposition to the Agency's exception.

The Arbitrator sustained a grievance contesting the grievant's 3-day suspension for being absent without leave (AWOL). For the following reasons, we conclude that the Agency's exception provides no basis for finding the award deficient. Accordingly, we will deny the exception.

II. Background and Arbitrator's Award

The grievant was suspended for 3 days for being AWOL during part of a period when he was incarcerated. The grievant was granted annual leave, to the extent of his accrued balance, to cover part of the time spent in jail. The grievant submitted applications for leave to his then-acting supervisor requesting 61 hours' leave without pay (LWOP) to cover the period of his incarceration for which he had no annual leave. The acting supervisor approved the requests for LWOP. Nevertheless, the Agency thereafter suspended the grievant for 3 days based on his unauthorized absence of 61 hours.

A grievance was filed contesting the suspension. When the parties could not resolve the grievance, it was submitted to arbitration. Because the parties could not agree on stipulated issues, the Arbitrator framed the issues, in relevant part, as follows:

Did Management have just cause to discipline the Grievant?

If not, what is the appropriate remedy?

Award at 4.

At the arbitration hearing, the Agency asserted that it never intended to grant the grievant LWOP for any of the time he spent in jail. However, the Arbitrator noted that management did not advise the grievant prior to the date he was notified of the proposed 3-day suspension either that he had been charged with AWOL or that discipline was being considered. The Arbitrator found that the Agency "should have told [the grievant] long before [notification of the proposed suspension] that he was being charged with AWOL." Id. at 48.

The Arbitrator determined that the Agency's failure timely to notify the grievant that he would be charged with AWOL "seriously undermined [m]anagement's contention that they never intended to grant [the grievant] LWOP[]" and "diminished the[] case for having just cause to discipline [the grievant] for being AWOL." Id. at 50. The Arbitrator also determined that, after the supervisor "signed the leave slips approving 61 hours of LWOP for the time [the grievant] was in jail, [m]anagement no longer had the right to charge him with AWOL for those same hours." Id. The Arbitrator concluded that "[m]anagement had no just cause to discipline [the grievant] for being AWOL . . . ." Id.

As his award, the Arbitrator directed the Agency to change the grievant's leave records to show that he was granted LWOP for the 61 hours for which he was charged with AWOL. The Arbitrator also directed the Agency to rescind the 3-day suspension and compensate the grievant for loss of pay, benefits, and any overtime resulting from his suspension.

III. Exception

The Agency contends that the award is inconsistent with the Agency's rights to assign work and discipline employees under section 7106(a)(2)(A) and (B) of the Statute. The Agency asserts that it was exercising its right to assign work when it denied the grievant LWOP for part of his period of incarceration. The Agency argues that the fact that it "inadvertently approved and, then, rescinded its approval of the LWOP does not change the fact that the exercise of management rights was manifestly involved." Exception at 6. The Agency also argues that the award neither enforces a law, rule, or regulation having the force and effect of law, nor applies a negotiated appropriate arrangement for employees adversely affected by the exercise of a management right under section 7106(b)(3) of the Statute. Therefore, the Agency maintains that the award is deficient and must be set aside.

IV. Analysis and Conclusion

The issue before the Arbitrator, as he framed it in the absence of a joint stipulation, was whether the disputed 3-day suspension of the grievant was for just cause. The Arbitrator's award responded to that issue, finding that management had no just cause to suspend the grievant. The award does not address the Agency's leave policy and does not prevent the Agency from charging any other employee, who is absent because of incarceration, with AWOL and imposing discipline as a consequence. Furthermore, the award does not direct the Agency to assign work and/or schedule employees in any particular way. Therefore, the award does not impermissibly interfere with management's rights to assign work or to discipline employees under section 7106(a)(2)(A) and (B) of the Statute. Consequently, this exception does not provide a basis for finding the award deficient. See U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky and National Association of Government Employees, Local R5-184, 47 FLRA 498, 502 (1993) and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Hyattsville, Maryland and National Association of Agriculture Employees, 38 FLRA 1291, 1294-95 (1991).

V. Decision

The Agency's exception is denied.

(If blank, the decision does not have footnotes.)