39:0022(4)AR - - HHS, SSA, Kansas City, MO District and AFGE Local 1336 - - 1991 FLRAdec AR - - v39 p22



[ v39 p22 ]
39:0022(4)AR
The decision of the Authority follows:


39 FLRA No. 4

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)

0-AR-1754

(37 FLRA 924)

ORDER GRANTING MOTION FOR RECONSIDERATION

AND MODIFYING DECISION

January 25, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on the Agency's motion for reconsideration of our decision in 37 FLRA 924 (1990). The Union did not file an opposition to the motion.

Our decision in 37 FLRA 924 ordered the Agency to reduce the amount of time the grievant was charged as being absent without leave (AWOL) by the amount of sick leave determined to be reasonable for the purpose of permitting her to receive medical examination or treatment, so long as it did not exceed the amount of her accrued sick leave at that time. For the reasons that follow, we grant reconsideration of our decision, and we will modify our decision to provide for a reduction in the amount of time the grievant was charged AWOL if the grievant requests sick leave for that time.

II. The Decision in 37 FLRA 924

In 37 FLRA 924, we concluded that the Arbitrator's award was deficient because it was contrary to 5 C.F.R. º 630.401(a), pertaining to sick leave.

On November 30, 1988, the grievant had called and informed her supervisor that due to illness, she would not be able to work that day. Because the grievant had fewer 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.

Before the Arbitrator, the Union argued that management had not acted reasonably in denying the grievant's request because she was sick on November 30 and went to her doctor in the afternoon. The Arbitrator found that management had properly denied the grievant's request.

The Union filed exceptions and, as pertinent to the Agency's motion, contended that the award was contrary to 5 U.S.C. º 6307 and 5 C.F.R. º 630.401, pertaining to sick leave. The Union maintained that the grievant had 4 1/4 hours of accrued sick leave available for use on November 30 and argued that the case should have been decided on the basis of the right of the grievant to use her 4 1/4 hours of accrued sick leave.

For the most part, we denied this exception. We noted that the Arbitrator had found that the denial of the grievant's request for annual leave in lieu of sick leave was reasonable and that the Union failed to establish otherwise. However, we concluded that the award was deficient as it pertained to the grievant's visit to her doctor. We determined that under 5 C.F.R. º 630.401(a) and the court's decision in Wade v. Department of the Navy, 829 F.2d 1106 (Fed. Cir. 1987) (Wade), an agency must grant sick leave to an employee when the employee receives medical examination or treatment. Consequently, we determined that sick leave should have been granted the grievant for the time attributable to the medical examination or treatment she received on November 30, in an amount not to exceed the amount of her accrued sick leave. Accordingly, we held that the award was deficient to the extent that it sustained the AWOL charge attributable to the time the grievant was receiving medical examination or treatment. We modified the award to order the Agency to reduce the amount of time the grievant was charged as being AWOL on November 30, 1988, by the amount of sick leave determined to be reasonable for the purpose of permitting her to receive medical examination or treatment on that date, so long as it did not exceed the amount of her accrued sick leave at that time.

III. Agency's Motion for Reconsideration

The Agency contends that extraordinary circumstances exist to warrant reconsideration because the decision in 37 FLRA 924 is based on a nonfact and addresses an issue beyond the jointly stipulated issue before the Arbitrator.

The Agency maintains that the decision in 37 FLRA 924 is based on the nonfact that the grievant requested sick leave for November 30, 1988. The Agency argues that, to the contrary, as found by the Arbitrator, the grievant never applied for sick leave for November 30. The Agency states that it cannot determine the basis upon which the Authority concluded that a request for sick leave was made. The Agency suggests that the misunderstanding may have resulted from the grievant's Application For Leave form (SF-71), if the Union submitted that SF-71 as an exhibit. The Agency states that although the SF-71 contains a request for 4 hours of sick leave, that request was for December 1 and not November 30. The Agency notes that it is uncertain what exhibits, if any, the Union submitted with its exceptions because, as it pointed out in its opposition to the Union's exceptions, it was not served with any exhibits. The Agency further argues that the Union never contended before the Arbitrator that sick leave was requested and the issue was never addressed by the Arbitrator.

The Agency also argues that the decision in 37 FLRA 924 exceeds the jointly stipulated issue, which was whether the grievant was suspended for just cause. The Agency claims that this issue cannot be read to include a sick leave request that was never made or presented to the Arbitrator.

IV. Analysis and Conclusions

In our view, the Agency has misconstrued our decision in 37 FLRA 924. On the basis of the Union's exception, an issue presented to the Authority was whether the Agency's charging the grievant with AWOL for the period of time during which she was receiving medical examination or treatment was consistent with 5 C.F.R. º 630.401(a). Based on Wade and in view of the fact that, at the time, the grievant had 4 1/4 hours of accrued sick leave and had indicated by her SF-71 an intent to use her accrued sick leave, we found that sick leave should have been granted the grievant for the time attributable to the medical examination or treatment she received on November 30, in an amount not to exceed the amount of her accrued sick leave.

Our finding was not specifically based on the grievant's request for sick leave. What we viewed to be dispositive was the uncontroverted fact that although the grievant had an accrued sick leave balance on November 30, the Agency charged the grievant with AWOL while she was receiving medical examination or treatment. Consequently, we ruled that the award was deficient to the extent that it sustained the AWOL charge attributable to the time the grievant was receiving medical examination or treatment because that portion of the award was contrary to 5 C.F.R. º 630.401(a) pertaining to the granting of sick leave.

In reexamining our decision, however, we now conclude that under 5 C.F.R. º 630.402, which requires that "[a]n employee shall file a written application for sick leave[,]" our order should have been specifically based on a request by the grievant. Accordingly, on this basis we will reconsider our decision in 37 FLRA 924. Although the grievant had indicated on her SF-71 an intent to use her accrued sick leave for a portion of the 2-day period, it is unclear whether she was specifically requesting sick leave for November 30. In view of the circumstances of this case, we will now provide the grievant with an opportunity to clarify her request for sick leave and to specify the period for which she was requesting that leave. We will modify our order so that it will be based specifically on a request by the grievant to be granted sick leave for the time attributable to the medical examination or treatment she received on November 30, 1988, in an amount not to exceed the 4 1/4 hours of accrued sick leave she had at that time.

We note that the Union attached exhibits to its exceptions, including the grievant's SF-71. We should have required the Union to have cured the deficiency of failing to serve these exhibits on the Agency. Although the Agency should have been properly served, our decision was based on 5 C.F.R. º 630.401(a) and Wade and on the uncontroverted fact that the grievant had accrued sick leave, but was nevertheless charged with being AWOL while receiving medical examination or treatment. Consequently, we find that the Union's deficiency and our error in failing to require the Union to cure the deficiency were harmless and do not provide any basis for otherwise modifying our decision.

V. Order

The decision in 37 FLRA 924 is modified to provide as follows:

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 extent the Activity failed to grant the grievant sick leave on November 30, 1988, when she received medical examination or treatment, if the grievant clarifies her original request for leave to indicate an intention to use sick leave on that day. The Activity is ordered to reduce the amount of time the grievant was charged as being AWOL on November 30, 1988, by the amount of sick leave to be granted to the grievant, not to exceed the amount of her accrued sick leave at that time