37:0924(77)AR - - HHS, SSA, Kansas City, Missouri District and AFGE Local 1336 - - 1990 FLRAdec AR - - v37 p924



[ v37 p924 ]
37:0924(77)AR
The decision of the Authority follows:


37 FLRA No. 77

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

KANSAS CITY, MISSOURI DISTRICT

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1336

(Union)

O-AR-1754

DECISION

October 9, 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 Charles E. Krider. The Arbitrator found that management had properly denied the grievant's request for annual leave and had not imposed a disciplinary suspension when it charged her with being absent without leave (AWOL). The Arbitrator denied the grievance.

The Union filed exceptions 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 Activity filed an opposition to the Union's exceptions.

We conclude that the award is deficient because it is contrary to 5 C.F.R. § 630.401(a), pertaining to employee requests for sick leave.

II. Background and Arbitrator's Award

On November 30, 1988, the grievant, a teleservice representative, called her supervisor and informed her that, due to illness, she would not be able to work that day. Because the grievant had less than 8 hours of accrued sick leave, she requested 8 hours of emergency annual leave for that day. On December 1, the grievant called in to report that she was still sick and to request an additional 8 hours of emergency annual leave. Her supervisor denied the grievant's request for leave for November 30 and charged the grievant with being AWOL. Her supervisor granted the request for December 1.

A grievance was filed over the denial of leave and the charge of AWOL. When the parties could not resolve this dispute, the matter was submitted to arbitration on the issues of whether the arbitration should be pursuant to the regular or expedited procedure and whether the grievant was "suspended" for just cause on November 30.

After determining that the matter was subject to the parties' expedited arbitration procedures, the Arbitrator addressed the issue of whether the grievant had been suspended for just cause. The Union argued that management had not acted reasonably in denying the grievant's request for emergency annual leave. The Union maintained that the grievant was sick with a sore throat on November 30 and went to her doctor in the afternoon. The Union claimed that, consequently, management was obligated to grant the grievant's request.

The Arbitrator rejected the Union's position. The Arbitrator found that employees do not have an absolute right under the parties' collective bargaining agreement to use annual leave for personal emergencies. He determined that such occasions are to be infrequent in number. He found that the grievant had an attendance problem that caused her to use emergency annual leave on a frequent basis and that the grievant had been informed that she was using emergency annual leave excessively. Accordingly, the Arbitrator ruled that management was not required under the collective bargaining agreement to have granted the grievant's request because she had used emergency annual leave too frequently.

The Arbitrator also concluded that in view of the grievant's conduct on November 30, management had not acted arbitrarily in determining that the grievant did not have a personal emergency. The Arbitrator noted that the grievant testified that she worked her second job as a sales clerk the evening of November 30. In the Arbitrator's judgment, the grievant's job as a sales clerk was not substantially different than her job with the Activity because in both jobs she had to talk with customers on a continuing basis.

The Arbitrator also rejected the Union's contention "that management did not have just cause for what, in effect, was a suspension for one day." Award at 9. The Arbitrator disagreed with the Union's position that the AWOL designation was a suspension because the grievant did not work and did not get paid for November 30. The Arbitrator noted that "suspension" is defined as "the placing of an employee, for disciplinary reasons, in a temporary status without duties and pay." 5 U.S.C. § 7501; 5 C.F.R. part 752. He concluded that management must act to prevent the employee from working for a suspension to occur. In this case, he found that it was the grievant who made the decision not to work because of her illness, and management did not initiate a suspension. Consequently, he found that this case only involved a reasonable denial of a request for emergency annual leave. Accordingly, he ruled that the grievant was not suspended, but was reasonably denied emergency annual leave.

III. First Exception

A. Positions of the Parties

The Union contends that the award is deficient because the Arbitrator departed from the submitted issue of just cause for a suspension.

The Union argues that the Activity's action in charging the grievant with being AWOL, while approving leave for December 1, "constituted an enforced leave that must be considered to be a constructive suspension." Union's Exceptions at 4. The Union cites Pittman v. MSPB, 832 F.2d 598 (Fed. Cir. 1987) (Pittman), as support for its position. Union's Exceptions at 4. The Union asserts that by failing to adhere to the stipulated issue, the Arbitrator failed to apply the due process requirements for short-term suspensions in the parties' collective bargaining agreement and committed harmful and reversible error.

The Activity contends that the Union's exception "misrepresents the facts, attempts to reargue the merits, and incorrectly applies case law." Opposition at 2. In particular, the Activity argues that charging the grievant with being AWOL did not constitute a constructive suspension.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the award is deficient as alleged in this exception. We find that the Arbitrator appropriately resolved the stipulated issue of just cause for a suspension by determining that the grievant had not been suspended.

The Federal Personnel Manual (FPM) states that "[r]ecording an absence as AWOL is not a disciplinary action." FPM Letter 630-29. We agree with the Arbitrator that this case "involve[s] the denial of a request for annual leave and not a disciplinary suspension." Award at 10. Furthermore, the Union fails to establish that management's action constituted a constructive suspension. In Bucci v. Department of Education, 36 M.S.P.R. 489 (1988) (Bucci), the Merit Systems Protection Board (MSPB) held that the placement of the employee in an AWOL status because the employee's documentation for requested sick leave was inadequate was not a constructive suspension. The MSPB distinguished Pittman, cited by the Union in its exception, on the basis that the agency had not placed the employee in an enforced leave status. The MSPB concluded in Bucci that it was not the agency which was responsible for the employee's absence from work, but the employee. We find that the Arbitrator correctly applied the definition of suspension to find that management did not prevent the grievant from performing her duties on November 30 and did not place her in a nonduty status. See Bucci, 36 M.S.P.R. at 492. In our view, the parties' stipulation cannot change the nature of the Activity's action.

Accordingly, we deny the exception.

IV. Second Exception

A. Positions of the Parties

The Union contends that the award violates 5 U.S.C. § 6307 and 5 C.F.R. § 630.401, pertaining to the granting of sick leave.

The Union maintains that the grievant had 4 1/4 hours of accrued sick leave available for use on November 30 and that the grievant, in completing her Application For Leave on returning to work, requested 4 hours of sick leave and 12 hours of annual leave in lieu of sick leave. The Union argues that the Arbitrator erred by deciding this case on the basis of the use of annual leave for emergency purposes rather than on the basis of the right of the grievant to use her 4 1/4 hours of accrued sick leave and to be granted annual leave in lieu of sick leave.

The Activity contends that the Union's exception misrepresents the facts, attempts to reargue the merits, and incorrectly applies case law. The Activity argues that the grievant requested 8 hours of annual leave for November 30 because she did not have sufficient sick leave for the whole day and that, consequently, the request is governed solely by the annual leave procedures. The Activity further argues that, in any event, the grievant was not entitled to sick leave because the evidence established that the grievant was not incapacitated because she worked her second job on November 30.

B. Analysis and Conclusions

We conclude that the award is contrary to 5 C.F.R. § 630.401(a) to the extent that it sustained management's action in denying the grievant the right to use her accumulated sick leave for the purpose of receiving a medical examination or treatment on November 30, 1988.

In Wade v. Department of Navy, 829 F.2d 1106, 1109 (Fed. Cir. 1987), the court held that under 5 C.F.R. § 630.401(a), an agency must grant sick leave to an employee when the employee receives medical examination or treatment whether or not the employee was incapacitated for the performance of duties. The court reversed the MSPB, finding that sick leave should have been granted the employee because it was undisputed that he had received medical examination and treatment.

In this case, it is similarly undisputed that the grievant received medical examination or treatment whether or not she was incapacitated for the performance of duties. The Arbitrator specifically acknowledged, without dispute, that the grievant testified that she "went to her doctor on the afternoon of November 30." Award at 8. Consequently, we find that sick leave should have been granted the grievant for the time attributable to her receiving medical examination or treatment on November 30, in an amount not to exceed the amount of her accrued sick leave. Accordingly, the award is deficient to the extent it sustained the AWOL charge attributable to the time the grievant was receiving medical examination or treatment.

Otherwise, we find no basis for finding the award deficient. The Arbitrator recognized that the granting of emergency annual leave was discretionary with the Activity. The Arbitrator found that the Activity's denial of the grievant's request for emergency annual leave was not unreasonable because she had used emergency annual leave too frequently. He also found that the Activity's denial of the grievant's request was not unreasonable in view of the grievant's testimony that she worked her second job on November 30.

In our view, the Union fails to establish that the award is contrary to law or regulation pertaining to the granting of sick leave. Contrary to the argument of the Union, the granting of annual leave, including annual leave in lieu of sick leave, is a matter of administrative discretion. FPM Supplement 990-2, Book 630, Subchapter S3-4; see Campana v. Department of Navy, 873 F.2d 289 (Fed. Cir. 1989) (Campana) (the court held that authorization of leave without pay when medical excuses are involved is still generally a matter of administrative discretion). However, an agency's denial of such leave must be reasonable under the circumstances. Campana, 873 F.2d at 291. In this case, the Arbitrator found the denial to be reasonable and, except as found above, the Union fails to establish otherwise. In reaching this conclusion, we note that FPM Supplement 990-2, Book 630, Subchapter S4-3 contains severe restrictions on outside employment during periods that employees are unable to perform the duties of their position because of illness. These restrictions were disregarded by the grievant. We further note that, in examining the denial of requests for leave without pay when medical excuses are involved, the MSPB considers the employee's record of prior abuse of leave. The grievant was found to have used emergency annual leave too frequently.

V. Decision

The award is modified by striking the sentence that denied the grievance and substituting for it the following paragraph:

(2) The grievance is sustained to the exten