Veterans Administration Hospital, Fort Howard and Maryland Nurses Association, Fort Howard Chapter (Authority decision, January 7, 1983)

Final FLRA decision. The Authority upheld an arbitration award. Judicial review of an arbitration order is generally excluded by 5 U.S.C. § 7123(a)(1) unless it involves an unfair labor practice under § 7118. This order does not address an unfair labor practice.

Plain-English summary

A VA hospital charged a nurse with absence without leave after denying her emergency annual leave request. An arbitrator found the denial improper under the contract and ordered her record corrected and made whole. He also ordered an oral admonishment of the supervisor for handling the request discourteously. The Authority denied the hospital’s exceptions, finding no conflict with management’s statutory rights or other governing law.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a).
• Outcome: Arbitration award upheld; agency exceptions denied.
• Key point: The cited management rights did not invalidate the leave correction or admonishment of a supervisor.

Full text (FLRA public release)

[ v11 p10 ]

11:0010(6)AR

The decision of the Authority follows:

11 FLRA No. 6

VETERANS ADMINISTRATION
HOSPITAL, FORT HOWARD,
MARYLAND
Activity

and

MARYLAND NURSES ASSOCIATION,
FORT HOWARD CHAPTER
Union

Case No. O-AR-197

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Seymour Strongin 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.

The dispute in this matter concerns management's refusal to grant the grievant emergency annual leave on February 21, 1980, and management's charging the grievant with being absent without leave on that date when she did not report for work. A grievance was filed protesting management's actions that was submitted to arbitration.

The Arbitrator determined in the circumstances presented that the grievant was entitled to have been granted emergency annual leave under the leave provisions of the parties' collective bargaining agreement. Accordingly, as his award in this respect, the Arbitrator ordered that the grievant's record be changed from absent without leave to emergency annual leave on the day in question and that the grievant otherwise be made whole. The Arbitrator further observed that under the parties' agreement unplanned leave requests were to "be attended in a courteous and professional manner." In terms of this case, the Arbitrator found that the evidence of the grievant's treatment by her supervisor in refusing to grant the grievant's leave request warranted an oral admonishment to treat such requests in a courteous and professional manner as required by the agreement. Accordingly, as his award in this respect, the Arbitrator ordered the Activity to admonish the grievant's supervisor.

The Agency filed an exception to each portion of the Arbitrator's award. In its exception to that portion of the Arbitrator's award ordering the admonishment of the grievant's supervisor, the Agency contends that the award is contrary to the Statute. Specifically, the Agency maintains that this portion of the award infringes on management's right under section 7106(a)(2)(A) /1/ to discipline its employees. However, the Agency's exception provides no basis for finding the award deficient.

The Statute specifically provides that the authority of management to take disciplinary action under section 7106(a)(2)(A) encompasses only "employees," and section 7103(a)(2) expressly excludes a supervisor from the definition of "employee" for purposes of the Statute. See, e.g., American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 8 FLRA No. 75 (1982), at 25; National Council of Field Labor Locals of the American Federation of Government Employees, AFL-CIO and United States Department of Labor, 4 FLRA No. 51 (1980), at 4. Consequently, the the Agency not contradicting that the individual to be admonished in accordance with the award is a supervisor for purposes of the Statute, the Agency fails to establish that the award in ordering the grievant's supervisor admonished infringes on management's right under section 7106(a)(2)(A) to take disciplinary action against its employees. Likewise, the Agency fails to establish that the award is contrary to any governing law or regulation that may be concerned with the right of an agency to discipline agency personnel, in general.

In its exception to that portion of the award directing that the grievant's record of absence without leave be changed to emergency annual leave, the Agency contends that the award is contrary to governing law and regulation. Specifically, the Agency argues that the award infringes on management's right under civil service law and regulation to prescribe when annual leave may be taken and infringes on management's right under section 7106(a)(2)(B) to assign work.

The Agency's exception however provides no basis for finding the award deficient. As has been noted, the Arbitrator essentially found that the parties' collective bargaining agreement set forth criteria to be observed in determining whether emergency annual leave would be granted and concluded in terms of this case that management improperly applied the agreement provisions which resulted in the refusal of emergency annual leave to the grievant that she otherwise would have received. Consequently, the Arbitrator's award ordering the grievant made whole for the unwarranted action of denying her emergency annual leave is consistent with applicable law, see American Federation of Government Employees, Local 1395 and Department of Health and Human Services, Social Security Administration, 10 FLRA No. 5 (1982), at 2, and the award has not been shown to be otherwise contrary to governing law or regulation, see id. (in which the Authority with respect to an award ordering a day of annual leave changed to a day of excused absence without charge to leave denied an exception contending the award was contrary to governing law and regulation); Northeastern Program Service Center, Office of Program Service Centers, Social Security Administration and American Federation of Government Employees, Local 1760, 7 FLRA No. 120 (1982) (in which the Authority determined that nothing in governing law or regulation precluded an arbitrator from determining that the denial of leave without pay was unwarranted and from ordering the grievant's record changed from absent without leave to leave without pay); Long Beach Naval Shipyard, Long Beach, California and International Federation of Professional and Technical Engineers, Local 174, AFL-CIO and American Federation of Government Employees, Local 2237, AFL-CIO and Federal Employees Metal Trades Council, Long Beach, California, 7 FLRA No. 53 (1981) (in which the Authority determined that a proposal which under the stated conditions would require the granting of administrative leave was not prohibited by governing regulation and was within the duty to bargain).

Accordingly, the Agency's exceptions are denied. Issued, Washington, D.C., January 7, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ 5 U.S.C. 7106(a)(2)(A) pertinently provides:

(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency--

. . . .

(2) in accordance with applicable laws-- (A) . . . to suspend, remove, reduce in grade or pay, or take other disciplinary action against . . . employees (in the agency)(.)