FLRA DECISIONS

60 FLRA No. 85

CALL-IN REQUIREMENTS ... AWOL ... INCARCERATION

U.S. Department of the AirForce, 72nd Mission Support Group, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 0-AR-3841, November 19, 2004, 60 FLRA No. 85.

Holding

FLRA turned down agency exceptions to an award in which the arbitrator, although affirming the 5-day suspension imposed by the agency, held that because the grievant had been incarcerated for driving while intoxicated for 3 of the 4.5 days he was AWOL and was therefore limited in his ability to communictate during that period, the grievant should be charged annual leave, if available, or LWOP for the period of the incarceration.

Summary

The grievant had been stopped at a roadblock and, being found intoxicated, was incarcerated for 3 days. He had a friend call the agency to tell them he would not be able to report to work for those days. He also was AWOL the day before he was incarcerated, and he was 4 hours late reporting to work when he was released.

The agency suspended him for 5 days for (1) failing to call in and (2) being AWOL for 4.5 days. (A year earlier the grievant had been suspended 5 days for a 4-hour reporting violation.)

The matter was referred to arbitration and the arbitrator held that although the grievant didn't violate the call-in procedures for the 3 days he was incarcerated because of limitations on his ability to communicate, he did violate those procedures and was AWOL for 1.5 days (the day before, and the half-day after his incarceration). Noting his earlier discipline, the arbitrator sustained the 5-day suspension.

However, since the agency didn't have cause to deny the grievant leave for the period of incarceration, he ordered that the grievant either be charged annual leave for the 3 days or LWOP if he had no annual leave available.

The Authority turned down the agency's "exceed authority" and "contrary to Back Pay Act" exceptions. In rejecting the agency's claim that the award "directs the Agency to pay the grievant for three days of annual leave[,]" FLRA said the following:

According to the Arbitrator's award, if the grievant did not have any annual leave available, then the Agency must only correct the grievant's records to reflect his status as LWOP during the period of his incarceration. The parties agree that the grievant did not have any annual leave available for the time period in question. [References to exceptions and transcript citations omitted.] In these circumstances, the Agency is not directed to pay the grievant for the period of his incarceration because the Arbitrator ordered the Agency to pay only if annual leave was available. Therefore, the award is not inconsistent with the Back Pay Act because the Agency is not directed to restore any pay, allowance or differentials to the grievant.

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