49:0125(18)AR - - AFGE, Local 1637 and Justice, Federal Bureau of Prisons, Fedral Correctional Institution, Seagoville, TX - - 1994 FLRAdec AR - - v49 p125



[ v49 p125 ]
49:0125(18)AR
The decision of the Authority follows:


49 FLRA No. 18

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1637

(Union)

and

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

FEDERAL CORRECTIONAL INSTITUTION

SEAGOVILLE, TEXAS

(Agency)

0-AR-2469

_____

DECISION

February 24, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Barnett M. Goodstein 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.

The Union filed a grievance contesting the grievant's 3-day suspension for sick leave abuse. The Arbitrator found that there was just cause for the grievant's suspension and denied the grievance. For the following reasons, we find that the Union has not established that the award is deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant is a Control Officer assigned to monitor prison security. On June 21 and 22, 1992, the grievant called in and requested sick leave because he had sprained his ankle. The grievant returned to work on June 23, after which time one of the grievant's supervisors noted that the grievant "did not then limp at all, and that seemed strange for a person who had just a couple of days previously sprained his ankle." Award at 1. The grievant "was not accused of anything at that time." Id. at 3.

According to the Arbitrator, "[o]n or about June 28," the grievant called in "and requested sick leave as a result of a sore throat and fever[.]" Id. at 3. Because of this illness, the grievant was not at work from June 28 through June 30. When the grievant returned to work, he provided his supervisor with a medical report from his doctor, dated June 29, stating that the grievant "'was' totally incapacitated from June 28 to July 1, 1992." Id. at 6 (quoting the report).

From June 28 through June 30, the grievant was at the home of a friend on several occasions. During that period, the friend called the grievant's supervisor and the police to complain about the grievant's harassment of her. The Agency investigated the incident and notified the grievant of the Agency's intent to suspend him for 14 days for two separate violations on June 29: (1) unprofessional conduct; and (2) sick leave abuse. Subsequently, the Agency determined that there was insufficient evidence to support the charge of unprofessional conduct and, in December, gave the grievant a 3-day suspension for sick leave abuse.

The grievant filed a grievance contesting the suspension. The grievance was not resolved and was submitted to arbitration. The Arbitrator noted that he was "limited to an allegation of sick leave abuse, and that only," and stated the issue as follows:

Was the grievant suspended in December of 1992 for just cause and to promote the efficiency of the service, as a result of his having taken sick leave during June of 1992? If not, what shall be the appropriate remedy therefor?

Id. at 3 (emphasis omitted).

The Arbitrator found that the Agency "put on evidence at the arbitration hearing sufficient to make a prima facie case of sick leave abuse" and that "the prima facie case made by the [Agency] was not rebutted in any manner by the [g]rievant or the Union." Id. at 7. The Arbitrator found that the grievant was guilty of sick leave abuse "between June 27 and July 1, 1992." Id. at 8. The Arbitrator made the following award:

The [g]rievant was suspended for just cause and to promote the efficiency of the [s]ervice in December, 1992, for his sick leave abuse in June, 1992. Therefore, the [g]rievance is hereby denied.

Id. at 9 (emphasis omitted).

III. Positions of the Parties

A. Union

The Union contends that the Arbitrator's award is deficient because it is based on the nonfact that the grievant was on sick leave on June 29. According to the Union, the grievant's supervisor granted the grievant leave without pay (LWOP), not sick leave, on June 29. The Union argues that, because the Agency charged the grievant with sick leave abuse on June 29, when in fact he had been granted LWOP for that day, the grievant was charged with abusing leave that he had not taken.

The Union also contends that the award is based on the nonfact that the grievant was charged with abusing sick leave on days other than June 29. The Union asserts that the Agency charged the grievant with abusing sick leave only on June 29, and because the Arbitrator based his award on events occurring at other times in June, the award is deficient.

Finally, the Union contends that the award violates Article 3, Section a; Article 31, Section h.1; and Article 32, Section f of the parties' collective bargaining agreement.(*) In support of this contention, the Union asserts that the award violates Article 3, Section a because the Arbitrator "failed to examine the record and upheld the [Agency's] imposed disciplinary action on an employee" in violation of Agency regulations covering leave usage. Exceptions at 6. The Union contends that the award violates Article 31, Section h.1 because, although the grievant agreed that the sole issue for resolution by the Arbitrator was whether the disciplinary action taken by the Agency was for just and sufficient cause, the Arbitrator "includ[ed] specific time frames and add[ed] instances for which the grievant was not charged" in upholding the Agency's discipline of the grievant and thereby modified the provisions of Article 31, Section h.1. Id. at 7. Further, the Union asserts that the award violates Article 32, Section f because that provision provides that the Arbitrator "shall have no power to add to, subtract from, disregard, alter, or, modify any of the terms of" the parties' agreement or Agency policies or regulations. Id. at 7-8.

B. Agency

With respect to the Union's contention that the grievant was granted LWOP, rather than sick leave, on June 29, and therefore, could not be charged with sick leave abuse, the Agency asserts that this argument constitutes a new issue that could have been, but was not, raised before the Arbitrator. Therefore, according to the Agency, this contention should not be considered by the Authority pursuant to section 2429.5 of the Authority's Rules and Regulations. As to the substance of the contention, the Agency states that it "does not take issue with the fact that the grievant was placed in an approved leave status" on June 29. Opposition at 5. However, the Agency asserts that the Union's contention does not demonstrate that the award is deficient because "[w]hether [the] grievant's absence from duty was charged as sick leave or leave without pay is not the central issue in the case . . . ." Id. at 4. The Agency also contends that the Union has failed to show that the Arbitrator based his award on events occurring on days other than June 29 or that the award violates the parties' collective bargaining agreement.

IV. Analysis and Conclusions

A. Preliminary Matter

For the following reasons, we will not consider the Union's contention that the Arbitrator's award is based on a nonfact because the grievant was granted LWOP, rather than sick leave, on June 29, the date for which he was accused of sick leave abuse. The Agency contends that the Union is precluded under section 2429.5 of the Authority's Rules and Regulations from raising this argument because the Union's assertion that the grievant was granted LWOP, rather than sick leave, on June 29, and, therefore, could not be charged with sick leave abuse, "constitutes a new issue that was not raised before the [A]rbitrator and should not, therefore, be considered by the Authority." Opposition at 2. The Union presents no evidence demonstrating that this argument was raised before the Arbitrator. Rather, the record in this case demonstrates that the Union based its defense of the grievant on the certification by the grievant's doctor that the grievant was totally incapacitated on the day in question and had been granted sick leave. See Opposition, Attachment 3, Union's Written Closing Statement (["The grievant] followed established procedures for requesting sick leave and was granted sick leave on June 29, 1992.").

In these circumstances, we find that the issue of the grievant's leave status on June 29 is being raised for the first time by the Union before the Authority. Section 2429.5 of the Authority's Rules and Regulations provides, as relevant here, that the Authority will not consider any issue which was not presented in the proceedings before the arbitrator. See, for example, U.S. Department of Veterans Affairs, National Memorial Cemetery of the Pacific and International Association of Machinists and Aerospace Workers, Hawaii Federal Lodge 1998, 45 FLRA 1164, 1169 (1992) and cases cited therein. Accordingly, we will not consider the Union's contention that the award is deficient because it is based on the nonfact that the grievant was on sick leave on June 29.

B. Award Is Not Based on a Nonfact

The Union also contends that the award is based on a nonfact because the Arbitrator upheld the Agency's discipline of the grievant for sick leave abuse based on conduct of the grievant that occurred over several days during June 1992, rather than on June 29 alone. To establish that an award is based on a nonfact, a party making the allegation must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See, for example, U.S. Department of the Army, U.S. Army Support Command, Fort Shafter, Hawaii and International Association of Machinist and Aerospace Workers, AFL-CIO, Hawaii Federal Lodge 1998, 48 FLRA 777, 779-80 (1993) (Department of the Army).

Even assuming that the Arbitrator's determination that the grievant was guilty of sick leave abuse over several days during the month of June was the central fact underlying his award, we find that the Union has not demonstrated that the Arbitrator's determination is clearly erroneous. We also find that the Union has not demonstrated that but for the Arbitrator's allegedly erroneous determination as to the days on which the grievant was guilty of sick leave abuse, the Arbitrator would have reached a different result regarding the alleged sick leave abuse on June 29. Therefore, the Union has not demonstrated that the award is based on a nonfact and its exception provides no basis for finding the award deficient on that basis. See, for example, American Federation of Government Employees, Local 2128 and U.S. Department of Defense, Defense Logistics Agency, Defense Contract Management District South, 47 FLRA 962, 967 (1993). Accordingly, we deny the exception.

C. Arbitrator Did Not Exceed His Authority

Although the Union's previous exception is stated in terms of nonfact, the Union's argument in support of its exception appears to be a contention that the issue as framed by the Arbitrator goes beyond the scope of the issue submitted to arbitration. In particular, the basis for the Union's exception is the claim that the issue before the Arbitrator was whether there was just cause for the Agency to discipline the grievant for sick leave abuse on June 29. The Union argues, in essence, that by basing his decision that there was just cause for the discipline of the grievant on a finding of sick leave abuse between June 27 and July 1, the Arbitrator addressed a different issue than that presented by the grievance.

We construe the Union's arguments as a claim that the award is deficient because the Arbitrator exceeded his authority. An arbitrator exceeds his or her authority when, for example, the arbitrator resolves an issue not submitted to arbitration or awards relief to persons who are not encompassed within the grievance. See, for example, U.S. Department of the Navy, Long Beach Naval Shipyard, Long Beach, California and Federal Employees Metal Trades Council, 48 FLRA 612, 616 (1993). However, in the absence of a stipulation by the parties, arbitrators are accorded substantial deference in the formulation of issues to be resolved in an arbitration proceeding. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, Council 215, 48 FLRA 833, 838 (1993). The Union has not established that the parties stipulated the issue before the Arbitrator or that the Arbitrator's award relates to matters which were not submitted to arbitration or in any other manner exceeds the Arbitrator's authority. The Arbitrator stated the issue before him as whether the grievant was suspended for just cause and to promote the efficiency of the service as a result of having taken sick leave "during June of 1992[.]" Award at 3. Further, the Arbitrator stated that "[t]he issue before this [A]rbitrator is limited to an allegation of sick leave abuse, and that only." Id. The Arbitrator did not confine the issue to sick leave abuse on any particular date in June.

The Arbitrator found that the Agency had proven sick leave abuse by the grievant between June 27 and July 1 and sustained the discipline of the grievant. We find that the award is responsive to the issue as formulated