41:0635(60)AR - - Air Force, Robins AFB, Warner Robins, GA and AFGE Local 987 - - 1991 FLRAdec AR - - v41 p635
[ v41 p635 ]
The decision of the Authority follows:
41 FLRA No. 60
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator J. Ralph Beaird. The Arbitrator denied the grievance over the 10-day suspension of the grievant.
The Union filed exceptions to the award 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 Agency did not file an opposition to the Union's exceptions.
For the reasons that follow, we will remand this case to the parties for further processing.
II. Background and Arbitrator's Award
The grievant is employed by the Agency as a machinist, and, at the time of the grievance, his tour of duty was from 4 p.m. to 12:30 a.m., Monday through Friday. On Sunday, April 2, 1989, the grievant injured his back. On April 3, 4, and 5, 1989, the grievant did not report to work and did not advise anyone at work about his absence. At approximately 5 p.m. on April 6, 1989, the grievant called his workplace and left a telephone number where he could be reached. At 5:30 p.m., the grievant's supervisor called the grievant and asked him why he had not notified the Agency of his absence. The grievant explained to his supervisor that he had not notified the Agency because of his severe pain and because his medication caused him to be disoriented and to sleep for extended periods of time. According to the grievant's supervisor, the grievant requested sick leave from April 3-7, and the grievant's supervisor advised the grievant that they would discuss the leave request when the grievant returned to work.
On April 5 and 6, the grievant visited his doctor. On April 10, the grievant returned to work. The grievant was examined by an Agency doctor and placed on limited duty for 3 days. The grievant requested sick leave for his absence and presented two certificates from his doctor stating "sick leave 4/4/89 thru 4/6/89 because of medical reasons" and "sick leave 4/4/89 thru 4/7/89 because of medical reasons." Award at 6 (quoting certificates). The grievant's supervisor "refused to grant the requested sick leave because Grievant had failed to call in as required by Article 24 of the Collective Bargaining Agreement."(1) Id. The grievant subsequently was charged with unauthorized absence or absence without leave (AWOL) for April 3, 4, and 5, 1989, and was suspended for 10 days.
The grievant filed a grievance over the suspension. The grievance was not resolved and was submitted to arbitration.
The Arbitrator rejected the grievant's claim that he was justified in failing to report his absences on April 3, 4, and 5, 1989. He found that the grievant's condition and circumstances were not so extenuating as to justify his failure to telephone or to have someone telephone his workplace and report his condition. The Arbitrator also rejected the Union's due process arguments. He found that the arguments were unsupported and that, in any event, there was no showing of harmful error that had caused substantial prejudice to the grievant's procedural rights. The Arbitrator also found that the 10-day suspension was an appropriate penalty. Accordingly, the Arbitrator denied the grievance.
The Union contends that the award is contrary to 5 C.F.R. § 630.401, which pertains to the granting of sick leave. The Union argues that under 5 C.F.R. § 630.401, the grievant was entitled to have been granted sick leave for the period of time during which he was charged with AWOL. The Union maintains that it is not disputed that the grievant was injured and under a doctor's care. The Union asserts that, therefore, the Agency was not justified in refusing to grant the grievant sick leave on the presentation of his statement of the injury and his doctor's certificates.
The Union notes that the Agency's own doctor agreed that the grievant was injured when he placed the grievant on limited duty. Consequently, the Union claims that the award is contrary to 5 C.F.R. § 630.401 by sustaining management's suspension of the grievant for 10 days for being AWOL. The Union asserts that the Agency erred in the offense with which it charged the grievant. The Union maintains that the Agency charged the grievant with AWOL when its case was based on a failure to request leave according to established procedures. The Union states that its position is supported by the decision in Wade v. Department of the Navy, 829 F.2d 1106 (Fed. Cir. 1987) (Wade).
The Union also contends that the Arbitrator failed to apply the prescribed standard of proof.
B. Analysis and Conclusions
We conclude that the award is contrary to 5 C.F.R. part 630, subpart D, pertaining to sick leave, because it sustains management's suspension of the grievant for AWOL based solely on the grievant's failure to follow established sick leave procedures.
5 C.F.R. § 630.401, entitled "Grant of sick leave," provides, as follows:
An agency shall grant sick leave to an employee when the employee:
(a) Receives medical, dental, or optical examination or treatment;
(b) Is incapacitated for the performance of duties by sickness, injury, or pregnancy and confinement;
(c) Is required to give care and attendance to a member of his immediate family who is afflicted with a contagious disease; or
(d) Would jeopardize the health of others by his presence at his post of duty because of exposure to a contagious disease.
Under section 630.401, an agency is required to grant sick leave to an employee when any of the events listed in (a)-(d) occur. Wade, 829 F.2d at 1109; Miller v. Bond, 641 F.2d 997, 1003 (D.C. Cir. 1981) (Miller); see also U.S. Department of Health and Human Services, Social Security Administration, Kansas City, Missouri District and American Federation of Government Employees, Local 1336, 37 FLRA 924, 928 (1990), decision modified, 39 FLRA 22 (1991) (the Authority cited and relied on Wade). As the court in Miller explained, the use of the phrase "shall grant" emphasizes the fact that an agency must grant sick leave when requested to do so by an employee in the instances set forth by section 630.401(a)-(d). Accordingly, the court ruled that "[n]o agency has the discretion to refuse to grant sick leave to a qualified applicant." 641 F.2d at 1003.
5 C.F.R. § 630.403 provides that an agency may grant a request for sick leave only when such a request is supported by "administratively acceptable" evidence. As noted by the court in Miller, 641 F.2d at 1003, section 630.403 provides some general guidelines on what evidence will support an applicant's entitlement to be granted sick leave. Section 630.403 provides that "[r]egardless of the duration of the absence, an agency may consider an employee's certification as to the reason for [the employee's] absence as evidence administratively acceptable." However, for an absence in excess of 3 workdays, and 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." In short, "[t]he agency's discretion is limited only by the requirement of 'reasonableness.'" Miller, 641 F.2d at 1003.
5 C.F.R. § 630.402 requires that the employee must request sick leave within the time limits prescribed by the agency. However, the Merit Systems Protection Board (MSPB), in interpreting and applying 5 C.F.R. part 630, subpart D, holds that an employee's duty to comply with the agency's sick leave procedures "is not . . . a condition precedent to the agency's duty to grant sick leave when presented with proper evidence of illness or injury." Atchley v. Department of the Army, 46 MSPR 297, 301 (1990) (Atchley). In MSPB's view, "[i]f an employee has provided administratively acceptable evidence of incapacity, prior to the agency's decision to remove him on AWOL charges, the agency must grant sick leave, regardless of the employee's failure to timely comply with the agency's sick leave procedures." Id. (citing Nash v. U.S. Postal Service, 8 MSPR 307, 310 & n.10 (1981) (Nash)). The MSPB advises that if an agency wants to discipline an employee for failing to comply with established sick leave procedures, the proper action is to propose discipline on that basis and not on the basis that the employee was AWOL on dates that the employee was incapacitated for duty by sickness or injury. Atchley, 46 MSPR at 301; Nash, 8 MSPR at 310 n.10.
In Atchley, the employee contended that he was incapacitated during the period for which he was charged with AWOL. The MSPB administrative judge sustained the removal based on the AWOL charge, finding that it was unnecessary to determine whether the employee was incapacitated because the employee had failed to follow the agency's sick leave procedures. Before the MSPB, the employee contended that reliance on his failure to follow sick leave procedures was erroneous because he was charged with AWOL and not with the failure to follow procedures. The MSPB agreed and held that the administrative judge erred in sustaining the AWOL charge solely on the basis of a failure to follow sick leave procedures without deciding whether the employee had provided administratively acceptable evidence of incapacity. The MSPB ruled that a failure to follow established agency sick leave procedures "cannot serve as a basis to sustain an AWOL charge." Atchley, 46 MSPR at 302. The MSPB explained that the dispositive issue in these types of cases is whether, prior to disciplinary action, the employee provided the agency with administratively acceptable evidence of incapacity during the period for which the employee was charged with AWOL.
We agree with the MSPB's interpretation and application of 5 C.F.R. part 630, subpart D, and we will apply the MSPB's approach to disciplinary actions based on AWOL when resolving exceptions to arbitration awards under the Statute. Similar to the MSPB's holding in Atchley, we hold in this case that the Arbitrator erred in sustaining the discipline of the grievant for AWOL solely on the basis of a failure to follow sick leave procedures without deciding whether the grievant had provided administratively acceptable evidence of incapacity for duty on April 3-5, 1989. The dispositive issue in this case is whether the grievant's statement of incapacity due to injury, the two doctor's certificates covering the period April 4-7, and the Agency's doctor's placement of the grievant on limited duty constituted administratively acceptable evidence of incapacity on April 3-5 within the meaning of section 630.403. However, this issue was not addressed or resolved by the Arbitrator in his award sustaining the suspension and denying the grievance. Instead, the Arbitrator relied on the grievant's failure to follow the procedure for requesting sick leave under Article 24, Section 24.01 of the parties' agreement, which procedure does not pertain to supporting evidence for sick leave requests. As decided by the MSPB, the issue of whether an employee followed established s