37:0841(70)AR - - Treasury, Bureau of the Public Debt, Washington, DC and NTEU Chapter 199 - - 1990 FLRAdec AR - - v37 p841
[ v37 p841 ]
The decision of the Authority follows:
37 FLRA No. 70
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE TREASURY
BUREAU OF THE PUBLIC DEBT
NATIONAL TREASURY EMPLOYEES UNION
September 28, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Earle William Hockenberry 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 filed an opposition to the Agency's exceptions.
The Arbitrator found that the Agency violated the parties' collective bargaining agreement when it unilaterally instituted the practice of requiring employees on sick leave restriction to provide, along with a medical certificate, a medical diagnosis of their condition as a prerequisite to the granting of sick leave. The Agency contends that the award is contrary to section 7106(a)(2)(A) and (B) of the Statute and does not draw its essence from the parties' agreement.
For the reasons discussed below, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
During 1988, certain unit employees received leave restriction letters for frequent and/or unscheduled use of sick leave. The letters advised the employees that "future [sick] leave [requests] must be supported by a medical certificate identifying the time of treatment, diagnosis, whether or not the employee was capable of working during the time of absence, and the date the employee could return to duty from the medical condition." Award at 2.
The Union filed a grievance objecting to, among other things, the Agency's practice of requiring employees on sick leave restriction to provide a medical diagnosis of their condition along with their sick leave requests. This portion of the grievance was subsequently submitted to arbitration on the following stipulated issue: "Did the [Agency] violate Article 18, Section 4(C) of the Agreement? If so, what shall be the remedy?" Id.
Article 18 of the parties' collective bargaining agreement is entitled "Sick Leave," and provides in relevant part:
The Employer has the authority and the responsibility to determine that the employee's illness is such as to incapacitate him/her for his/her job and that the other reasons for which sick leave is granted are true.
. . . .
In those cases where the Employer has sound reasons to believe that an employee:
1. Is abusing his/her sick leave....
2. If such counseling is unsuccessful and the employee continues to abuse his/her sick leave, the Employer shall issue a written notice to the employee that all subsequent sick leave absences must be supported by a medical certificate, which states the period of medical care and certifies from a medical standpoint that the employee's condition during the absence was such that the doctor or practitioner considered the employee incapacitated for work.
Award at 2-3.
The Arbitrator determined that Article 18, section 2 was added to the parties' collective bargaining agreement "to capture the authority of the [Agency] in requiring a medical certificate as illuminated in 5 C.F.R. § 630.403." Id. at 6-7.(1) He stated that the term "medical certificate" as incorporated in section 4(C)(2) was found at 5 C.F.R. § 630.201(a)(6), and "indicate[d] that the focus of the term is addressing incapacitation rather than diagnosis." Id. at 7.(2) He noted that the term "diagnosis" was not referenced as a requirement for a medical certificate. Id.
The Arbitrator found that the language of section 4(C)(2), requiring that medical certificates "stat[e] the period of medical care and certif[y] from a medical standpoint that the employee's condition during the absence was such that the doctor or practitioner considered the employee incapacitated for work," had remained "virtually unchanged" since two prior agreements in 1978 and 1982. Id. at 6. He further found that from 1983 until December 23, 1987, Agency-issued leave restriction letters required requests for unscheduled or emergency sick leave to be supported by a doctor's certificate which indicated the reason that an employee was not able to report to work. The Arbitrator stated that on December 23, 1987, the Agency began issuing leave restriction letters which required medical certificates to include, among other things, a diagnosis of the medical condition which gave rise to the absence.
The Arbitrator determined that the Agency's practice of requiring that medical certificates contain a medical diagnosis constituted a unilateral change. He found that this change "was not in keeping with the established past practice of leave restriction letters requiring a 'reason,' [that is, a medical certificate certifying incapacitation] and was not in keeping with the intent of the parties at the bargaining table leading to the present Agreement to exclude statements of diagnosis." Id. at 7.
The Arbitrator further found that, prior to this change, the Agency had been able to discipline employees for failure to follow leave procedures. He concluded that the language and intent of Article 18, section 4(C)(2) does not conflict with Government-wide regulations, namely, 5 C.F.R. § 630.403, or Federal and private sector precedent. He found, however, that the question of whether Article 18, section 4(C)(2) infringed on management's right to direct employees under section 7106 of the Statute "is beyond the stipulated issue governing the instant proceedings and is more appropriately addressed in another forum." Award at 9.
Accordingly, the Arbitrator sustained the Union's grievance and found that the Agency violated Article 18, section 4(C)(2) of the parties' agreement, "the bargaining history between the parties, and the [Agency's] practice regarding medical certification since 1978." Id. He ordered the Agency to "cease and desist from its unilateral practice instituted on December 23, 1987, of requiring employees on leave restriction letters to provide a diagnosis as part of the medical certificate." Id.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the Arbitrator's award violates its rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and to assign work. The Agency argues that these rights include the right "to require an employee [to] account for their [sic] failure to meet standards of conduct that could lead to discipline." Exceptions at 2. According to the Agency, under the award, management could not ask employees to provide a diagnosis of their condition in addition to a medical certificate because the award gives employees "the right not to answer questions from management about their conduct (i.e. sick leave usage/abuse)." Id. at 3. The Agency contends that this prohibition infringes on management's rights to direct employees and to assign work and is inconsistent with the Authority's decision in American Federation of Government Employees, AFL-CIO, Local 2052 and Department of Justice, Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia, 30 FLRA 837 (1987) (FCI) (Proposal 1).
The Agency further contends that the award fails to draw its essence from the parties' agreement. The Agency contends that the award violates Article 18, section 2 of the parties' agreement because it restricts its ability to "require a general diagnosis from an employee on a leave restriction letter [and, therefore,] flies in the face of the plain language of the contract." Id.
B. Union's Opposition
The Union argues that the Agency's exceptions fail to demonstrate that the award is contrary to law, rule, or regulation or that the award is deficient on any grounds applied in the private sector. The Union asserts that the Agency's exceptions constitute nothing more than disagreement with the findings of the Arbitrator and an attempt to relitigate the grievance.
The Union contends that the award does not violate management's rights under section 7106. The Union asserts that the Agency's contention that the award precludes management from asking employees questions about their sick leave usage "grossly distorts the Arbitrator's award." Opposition at 6. According to the Union, the parties agreed that "an employee, if required to provide medical certification, must provide medical certification as established by the Code of Federal Regulations and embodied in the Standard Form 71 (sick leave request form)." Id. Further, the Union states that the parties "agreed that the Agency could call [an] employee['s] doctor if questions remained after receipt of medical certification." Id. The Union also contends that FCI is distinguishable because the contract language at issue in this case, unlike the proposal in FCI, does not preclude management from inquiring about an employee's medical diagnosis because management could talk to the employee's doctor.
Further, the Union contends that the Arbitrator's award is "well reasoned, draws its essence from the contract and should not be disturbed." Id. at 7.
IV. Analysis and Conclusions
A. The Arbitrator's Award Is Not Contrary to Law
We conclude that the Agency has failed to establish that the Arbitrator's award is contrary to law.
In Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA No. 20 (1990) (U.S. Customs Service), the Authority defined the approach that is to be used when an agency contends that an arbitrator's award enforcing an agreement provision is contrary to section 7106(a) of the Statute. The Authority held as follows:
[W]e will examine the provision enforced by the arbitrator to determine (1) if it constitutes an arrangement for employees adversely affected by the exercise of managements rights, and (2) if, as interpreted by the arbitrator, it abrogates the exercise of a management right. If it is evident that the provision constitutes an arrangement and, as interpreted by the arbitrator, does not abrogate management's rights, the provision is within the range of matters that can be bargained under the Statute. Consequently, we will not find that the award is contrary to law, and we will deny the exception. If the arbitrator's interpretation does result in an abrogation of management's rights under section 7106(a), the award will be found deficient as contrary to law under section 7122(a) of the Statute; the contractual provision, susceptible to a different and sustainable interpretation by a different arbitrator will not be affected.
Id., Slip op. at 5-6.
Applying that approach in this case, we find that the Agency fails to establish that the award is contrary to law. Instead, the Arbitrator has enforced a provision of the parties' collective bargaining agreement which constitutes an arrangement for employees adversely affected by the exercise of management's rights to discipline employees and assign work. See National Federation of Federal Employees, Local 1380 and U.S. Department of the Navy, Naval Coastal Systems Center, Panama City, Florida, 36 FLRA 725, 737-42 (1990).
The provision, as interpreted and applied by the Arbitrator, addresses the concerns of employees adversely affected by management's exercise of its right to discipline employees and assign work by holding employees accountable for their sick leave usage. In particular, the Arbitrator found that the intent of the parties was "to exclude statements of diagnosis," thereby limiting the adverse effects on employees of an intrusion into medical matters which are of a personal and private nature. Award at 7. Therefore, we find that the Arbitrator merely enforced an arrangement negotiated by the parties when he ordered the Agency to cease its unilaterally implemented practice of requiring employees on leave restriction to provide a diagnosis as part of the medical certificate.
Further, we find that the award does not abrogate management's rights because it does not preclude the Agency from requiring employees to account for their sick leave usage pursuant to the Agency's rights to assign work and to discipline employees under section 7106(a) of the Statute. In U.S. Customs Service, the Authority held that an award "abrogates" a management right when the award "precludes an agency from exercising" that right. U.S. Customs Service, slip op. at 6. The Arbitrator noted testimony to the effect that if management has reason to question the sick leave usage of an employee, management "would be free to contact the [employee's] physician by phone." Award at 5-6. Also, the Union states that the parties "agreed that the Agency could call [an] employee['s] doctor if questions remained after receipt of medical certification." Opposition at 6.
Thus, as interpreted and enforced by the Arbitrator, the provision would not prevent management from obtaining relevant information about the employee's sick leave usage. If necessary, under the contract provision as enforced by the Arbitrator, management could still obtain required information from the employee's doctor. Consequently, we conclude that the Arbitrator's award would not preclude the Agency from exercising its right to hold employees accountable for their use of sick leave. Accordingly, we conclude that the Arbitrator has properly enforced an arrangement and that, therefore, the Agency's exception provides no basis for finding the award contrary to section 7106(a) of the Statute. See U.S. Customs Service, slip op. at 6.
B. The Agency Has Not Established That the Award Fails to Draw Its Essence From the Parties' Agreement
The Agency contends that the award does not draw its essence from the agreement. The Agency contends that the award violates Article 18, section 2 of the agreement because it restricts its ability to require a general diagnosis from an employee on a leave restriction letter, which "flies" in the face of the plain language of the contract. Exceptions at 3.
In order to establish that an award is deficient on the basis that it does not draw its essence from the agreement, the party making the allegation must demonstrate that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-577 (1990) (Department of Labor (OSHA)).
The Agency's exception fails to establish that the Arbitrator's award does not draw its essence from the agreement. The Arbitrator interpreted sections 2 and 4(C)(2) of Article 18 of the agreement and found, based upon the evidence, that a diagnosis was not referenced as a requirement for a medical certificate. The Arbitrator's award ordering the Agency to cease requiring employees on leave restriction letters to provide a diagnosis as part of the medical certificate is based on his interpretation of the agreement. The Agency's contention merely constitutes disagreement with the Arbitrator's interpretation and application of the parties' agreement. That contention provides no basis for finding the award deficient under section 7122(a) of the Statute. See, for example, Department of Labor (OSHA), 34 FLRA at 575-77.
The Agency's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. 5 C.F.R. § 630.403 provides in relevant part:
An agency may grant sick leave only when supported by evidence administratively acceptable . . . . However, for an absence in excess of 3 workdays, or for a lesser period when determined necessary by an agency, the agency may also require a medical certificate, or other administratively acceptable evidence as to the reason for the absence.
2. 5 C.F.R. § 630.201(a)(6), which was adapted by the Office of Personnel Management for use in Standard Form 71 (Application for Leave--Certification of Physician or Practitioner), states:
"Medical certificate" means a written statement signed by a registered practicing physician or other practitioner certifying to the in