41:0642(61)AR - - VA Medical Center, Hampton, Virginia and NAGE Local R4-17 - - 1991 FLRAdec AR - - v41 p642
[ v41 p642 ]
The decision of the Authority follows:
41 FLRA No. 61
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator C. Robert Roadley filed by the Union 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 exception.
The grievant was charged with 5 days of absence without leave (AWOL) because he had not provided satisfactory evidence to support his request for sick leave and he was reprimanded for being AWOL. The Arbitrator ruled that the grievant had not provided satisfactory evidence for the first 3 days of his absence and sustained 3 days of the AWOL charge. The Arbitrator also ruled that the reprimand was too severe a punishment and directed that a letter of counseling be substituted for the reprimand.
We conclude that the award is contrary to 5 C.F.R. part 630, subpart D, which pertains to sick leave. We will, therefore, modify the award to reverse the reprimand and to direct the Agency to revoke the AWOL charge and grant the grievant sick leave.
II. Background and Arbitrator's Award
The grievant is a regularly scheduled, part-time employee of the Agency who works a 4-hour shift each day, Monday through Friday. On Monday, September 25, 1989, the grievant called in sick. He called in again on the next day stating that he was still sick. On September 27, he called in stating that he was still sick, that he was going to see his doctor on September 28, and that he hoped to return to work on Friday, September 29. On September 29, the grievant reported for work and gave his supervisor a certificate from his doctor, which stated that the doctor had examined the grievant on September 28 and that the grievant was suffering from gastroenteritis. However, the grievant was still sick and his supervisor allowed him to return home before his workday had begun. The grievant returned to work on Monday, October 2 and worked his full shift.
The grievant submitted a completed and signed application for leave (Standard Form (SF) 71) requesting sick leave for September 25-29. The grievant's supervisor signed the application and approved the sick leave request. However, she informed the grievant that he would need an excuse to cover the whole week. The grievant indicated to his supervisor that he would try to get a doctor's certificate covering September 28-29 and would write a statement explaining why he could not go to the doctor on September 25-27. The grievant subsequently provided his supervisor with a doctor's certificate showing that the grievant had been under the doctor's care from September 28-29 and stating that the grievant was suffering from gastroenteritis.
The grievant took the position that no documentary evidence was required for the first 3 days of his sickness. The grievant's supervisor disagreed. She changed the 5 days of sick leave to 5 days of AWOL and issued the grievant a reprimand. The grievant filed a grievance. The grievance was not resolved and was submitted to arbitration.
The Arbitrator noted that this was the first case of the Agency requiring medical certification of the entire period of an illness of a duration of more than 3 days. He stated that the grievance presented the question of whether the Agency had abused its discretion when it charged the grievant with 5 days of AWOL and reprimanded him for it.
The Arbitrator found that the grievant had followed the prescribed procedure in completing and signing the SF-71 application for leave for the period of September 25-29. It was also obvious to the Arbitrator that the doctor's certificates submitted by the grievant conclusively established that the grievant was incapacitated on September 28-29. However, although the Arbitrator found that there was no doubt that the grievant was incapacitated for duty due to sickness during the period of September 25-29, the Arbitrator concluded that the matter of the excuse for September 25-27 had not been resolved.
The Arbitrator rejected the Agency's position that the only acceptable evidence of sickness of a duration of more than 3 days was a medical certificate for the entire period. He concluded that an employee's signed statement may be accepted in lieu of a medical certificate. "In other words the type of acceptable evidence to be accepted is discretionary (signed statement vs doctor's certificate) depending on the circumstances; a signed statement covering the first three days together with the doctor's certificate . . . covering the last 2 days of [the grievant's] absence account [sic] of sickness would have, in this case, satisfied the requirements, in the view of this arbitrator." Award at 14 (emphasis in original).
However, the Arbitrator noted that the grievant had decided not to submit a signed statement and to pursue his position that no excuse was required for the first 3 days of his absence. The Arbitrator ruled that the grievant had not provided satisfactory or acceptable evidence within the meaning of civil service regulations and the parties' collective bargaining agreement of his incapacity due to sickness because the first 3 days of the 5-day absence were not covered by a doctor's certificate or the "grievant's personal certification." Id. at 21. Because he believed that the grievant's incapacity had not been sufficiently established, the Arbitrator distinguished cases cited by the Union in which it was held that the granting of sick leave was mandatory when incapacity had been established. Accordingly, the Arbitrator determined that the grievant was not entitled to have been granted sick leave for the first 3 days of his absence and, therefore, he sustained 3 days of the AWOL charge.
The Arbitrator determined that the reprimand was too severe a punishment for the grievant's mistake in judgment. Accordingly, the Arbitrator directed that a letter of counseling be substituted for the reprimand.
The Union contends that the award is contrary to applicable regulations by failing to find that the grievant should have been granted sick leave for his entire illness and by failing to reverse completely the AWOL charge.
The Union asserts that, once the Arbitrator found that the grievant was unable to work due to sickness during the period from September 25 to September 29, 1989, the Arbitrator erred by failing to find that the grievant should have been granted sick leave for the entire 5-day period of his illness. The Union argues that under 5 C.F.R. § 630.401, the granting of sick leave is mandatory and an employee is entitled to use sick leave when incapacitated by illness. The Union maintains that the Arbitrator apparently confused redundant paperwork with supporting evidence. The Union claims that there was sufficient evidence to establish the grievant's entitlement to sick leave for the entire period. The Union argues that the Agency had notes on the grievant's time sheets indicating he had called in on the first 3 days of his illness, as well as a doctor's certificate and a signed request for leave. The Union maintains that the Arbitrator's insistence on a written certification of why the grievant had not seen a doctor for the first 3 days is inconsistent with civil service regulations that permit an employee to merely certify to incapacity by, for example, initialing a time and attendance report. Exception at 6 (citing Federal Personnel Manual (FPM) Letter 630-29 at 2).
B. Analysis and Conclusions
We conclude that the award is contrary to 5 C.F.R. part 630, subpart D, which pertains to sick leave.
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 v. Department of the Navy, 829 F.2d 1106, 1109 (Fed. Cir. 1987) (Wade); 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 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 c