AFGE Local 2004 and New Cumberland Army Depot (Authority decision, May 29, 1987)

Final FLRA decision. The Authority denies the depot's exception to an arbitration award reducing an employee's suspension from five days to one while sustaining three days of absence without leave. Under 5 U.S.C. § 7123(a)(1), Authority orders involving arbitral awards generally are excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

New Cumberland Army Depot suspended an employee for five days over sick leave use and charged him with three days of absence without leave. The arbitrator found evidence of sick leave abuse, but also found that the depot had not given the employee the warning letter required by its labor agreement before requiring future medical certificates. He reduced the suspension to one day and upheld the three days of absence without leave. The depot argued that the arbitrator had improperly substituted his judgment on the penalty. The Authority rejected that challenge, explaining that an arbitrator may reduce discipline that lacks just cause under a labor agreement.

Decision snapshot

• Authority: Arbitration exception under 5 U.S.C. § 7122(a).
• Outcome: Depot's exception denied; one-day suspension and three days of absence without leave stand.
• Key point: An arbitrator may reduce a disciplinary penalty that the labor agreement does not support.

Full text (FLRA public release)

[ v27 p387 ]

27:0387(52)AR

The decision of the Authority follows:

27 FLRA No. 52

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 2004
Union

and

NEW CUMBERLAND ARMY DEPOT
Activity

Case No. 0-AR-1300

DECISION

I. Statement of the Case

This matter is before the Arbitrator on an exception to the award of Arbitrator Walter H. Powell filed by the Activity under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

II. Background and Arbitrator's Award

The grievant was suspended for five days for misuse of sick leave, specifically for failing to request sick leave in accordance with established policies and for failing to provide an adequate medical certificate supporting his absences from work. He was also charged as being absent without leave (AWOL) for the three days not covered by the medical certificate. A grievance was filed contesting the suspension and the matter was submitted to arbitration.

The Arbitrator found that the parties' agreement requires that in circumstances in which sick leave abuse is indicated the employee will be provided a letter of understanding that medical certification will be required in the future. He found that although there was evidence that the grievant was abusing sick leave, the Activity did not issue him the required letter of understanding. The Arbitrator concluded that both the Activity and the grievant had disregarded the agreement and regulations concerning sick leave. Accordingly, as his award, the Arbitrator reduced the grievant's suspension from five days to one and sustained the charge of three days of AWOL.

III. Discussion

The Activity contends the Arbitrator exceeded his authority under the parties' agreement by substituting his judgment for that of the Activity as to the reasonableness of the penalty.

We conclude that the Activity has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule or regulation or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. See, for example, Federal Correctional Institution, Petersburg, Virginia and American Federation of Government Employees, Local 2052, Petersburg, Virginia, 13 FLRA 108 (1983) (exceptions that constitute nothing more than an attempt to relitigate the merits of a dispute before the Authority and disagreement with an arbitrator's reasoning and conclusions and interpretation of a negotiated agreement provide no basis for finding an award deficient); Portsmouth Naval Shipyard and Federal Employees Metal Trades Council, AFL-CIO, 5 FLRA 230 (1981) (an arbitrator properly may determine that all or part of a disciplinary penalty was not for just cause as required by a negotiated agreement and may set aside or reduce the penalty). Accordingly, the Activity's exception is denied.

Issued, Washington, D.C., May 29, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY