47:0675(63)AR - - NAGE, Service Employees International Union, Local R1-134 and Navy, Naval Underwater Systems Center, New London, CT - - 1993 FLRAdec AR - - v47 p675



[ v47 p675 ]
47:0675(63)AR
The decision of the Authority follows:


47 FLRA No. 63

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

SERVICE EMPLOYEES INTERNATIONAL UNION

LOCAL R1-134

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NAVAL UNDERWATER SYSTEMS CENTER

NEW LONDON, CONNECTICUT

(Agency)

0-AR-2373

_____

DECISION

May 20, 1993

_____

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 William S. Devino 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 exceptions.

The Arbitrator denied a grievance challenging the Agency's requirement that the grievant produce additional medical documentation to support his request for sick leave. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant, a welder, was scheduled for annual leave on August 9, 1991. On Monday, August 5, 1991, the grievant requested annual leave from August 7 to August 8. His request for leave was denied. Towards the end of his work shift on August 5, the grievant received a burn on his forearm. He went to his supervisor and indicated that he was going to the Agency's dispensary. An attendant treated the burn and advised him to see his personal physician.

The next morning, August 6, the grievant received additional treatment at the dispensary and asked for and received permission from his supervisor to leave work to see a physician at a local clinic. The grievant was treated at the clinic for a 2nd degree burn by Dr. Scarles. Dr. Scarles gave the grievant a note stating "'Return to work (for medical reasons) 8/8/91.'" Award at 4 (quoting note). The grievant then returned to the workplace and gave the note to his supervisor.

On the morning of August 8, the grievant called his supervisor from home and received permission to see his physician about his burn. However, when the grievant called the clinic and stated that he wanted to see Dr. Scarles, a receptionist told him that Dr. Scarles would not be in until Monday, August 12. Later that day, the receptionist called back the grievant and told him that Dr. Blum had reviewed his file and had written a note for him to be off work until August 12. The note stated that the grievant "'may return to work on 8/12/91.'" Id. (quoting note). The grievant picked up the note from the clinic before noon and notified his supervisor that he would not be in to work until Monday (August 12) and that he had a physician's note. The supervisor stated "that he wanted medical documentation that [the grievant] had to stay out two more days." Id. After conferring with a Union officer, the grievant called back his supervisor and stated that he would bring the note in on Monday. The supervisor informed the grievant that he wanted the note that day (Thursday).

The grievant returned to work on Monday, August 12. Because the supervisor was out on leave during that week, the grievant gave the note to the other supervisor in the shop. The grievant's supervisor returned from leave and discussed the issue with the grievant on Wednesday, August 21. The supervisor told the grievant "that the note from Dr. Blum was not sufficient and that he would have to have a physician's note to include a diagnosis for him to approve a [sick] leave request for August 8 and 9." Id. at 5. The grievant went to the clinic on August 22 and picked up a note. The note, dated August 13 and signed by Dr. Scarles, stated: "'Patient was excused from work due to injury. May return to work immediately[.]'" Id. (quoting note). The grievant returned to work and was informed by his supervisor that this note was not sufficient. The grievant told the supervisor that the receptionist at the clinic said that if more information were needed, someone should send the clinic a questionnaire. The supervisor did not send a questionnaire, but called the clinic and was told that Dr. Scarles was out and would not be available until August 27.

On August 27, the supervisor called Dr. Scarles and asked him why the grievant could not have returned to work on August 8. Dr. Scarles told the supervisor that the grievant's wound was minor and that "letting [the grievant] off until August 8 was 'stretching it,' but he thought it was reasonable, but he did not think that [the grievant] had a good case for staying out of work on August 8 and 9." Id.

For these reasons, the Agency placed the grievant on Absence Without Leave (AWOL) status for August 8. Inasmuch as the grievant had previously been approved for annual leave on August 9, that status was not changed. Further, the grievant was charged with 1 hour of sick leave on August 22 when he was away from work to pick up Dr. Scarles' note.

Subsequently, the grievant filed a grievance. When the grievance was not resolved, it was submitted to arbitration. The parties stipulated to the following issues before the Arbitrator:

Did the Employer have the right to require additional medical documentation to support the grievant's . . . request for sick leave for August 8 and 9, 1991? If not, what shall be the remedy?

Id. at 3.

The Arbitrator concluded that the Agency had the right to require additional medical documentation for the grievant's request for sick leave for August 8 and 9. The Arbitrator found that Article 22, Section 2 of the parties' collective bargaining agreement, which "clearly sets forth that sick leave absences extending beyond three (3) workdays [must] be verified by the statement of a physician or other licensed practitioner[,]" applies to this case because the grievant's request for sick leave on August 8 and 9 "triggered a more than three (3) workday absence." Id. at 11. The Arbitrator also cited Article 22, Section 1 of the agreement as relevant because it states, in part, that "[a]pproval of [s]ick [l]eave may be granted to employees when they are incapacitated for the performance of their duties[.]"(1) Id.

The Arbitrator found that "[n]one of the medical documentation presented regarding the injury would lead one to believe it was more than a 2nd degree burn." Id. Further, the Arbitrator noted that the grievant's previous application for annual leave from August 7 to August 8, coupled with the grievant's days of absence associated with his wound, were enough to raise some reasonable suspicion in the mind of his supervisor, particularly considering Dr. Scarles' note of August 6 stating that the grievant could return to work on August 8. The Arbitrator noted that on August 8, the grievant could have "establish[ed] incapacity for work simply by visiting his [Agency's] dispensary." Id. at 12. The Arbitrator found that Dr. Blum's review of the grievant's medical file and note stating that the grievant may return to work on August 12 was not a substitute for a medical examination of the wound. The Arbitrator concluded that the supervisor's request for additional medical documentation was reasonable and authorized by Article 22, Section 1 of the parties' agreement. The Arbitrator found that "[t]he invocation of [Article 22, Section 1] can be made, as in the instant case, when management has any reasonable doubt as to the presence of incapacity for the performance of duties." Id. Finally, the Arbitrator found no evidence to support the Union's contention that the grievant was treated disparately. Therefore, the Arbitrator denied the grievance.

III. Union's Exceptions

The Union asserts that the award does not draw its essence from the parties' collective bargaining agreement. The Union contends that the grievant satisfied his obligation under the agreement by submitting medical documentation for his absence in a timely fashion. In this regard, the Union notes that there was no contention or finding that the grievant was an abuser of sick leave and asserts that Article 22, Section 2 of the agreement sets forth a procedure available to the Agency if it finds that an employee is an abuser of sick leave. The Union argues that the Arbitrator's finding that the Agency had a "right to seek more documentation does not square with this provision." Id. at 3.

The Union also maintains that the Arbitrator "abused his authority by seeking to evaluate the sufficiency of" the physicians' statements concerning the grievant's wound.  Id. In this regard, the Union argues that the Arbitrator improperly substituted his judgment for that of the physicians in this case. The Union contends that the situation in this case is similar to that in U.S. Department of the Treasury, Bureau of the Public Debt, Washington, D.C. and National Treasury Employees Union, Chapter 199, 37 FLRA 841 (1990) (Bureau of the Public Debt). According to the Union, in Bureau of the Public Debt the Authority held that a unilateral imposition of a requirement for a diagnosis to be included in a physician's medical documentation was a violation of the parties' collective bargaining agreement. Additionally, citing U.S. Department of the Air Force, Robins Air Force Base, Warner Robins, Georgia, and American Federation of Government Employees, 41 FLRA 635 (1991) (Warner Robins), the Union argues that management cannot question the reasonableness of medical documentation. Therefore, the Union contends that medical documentation must be accepted at face value and that the Arbitrator's award is contrary to Authority case law.

IV. Analysis and Conclusions

A. The Award Does Not Fail to Draw Its Essence from the Parties' Agreement

We reject the Union's contention that the award fails to draw its essence from the parties' collective bargaining agreement. To establish that an award is deficient on this ground, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Department of the Air Force, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 43 FLRA 1266, 1269 (1992).

The Union has failed to establish that the award is deficient under any of these tests. Based on his interpretation of Article 22 of the parties' agreement, the Arbitrator concluded that the supervisor's requirement that the grievant provide additional medical documentation to support his request for sick leave was consistent with the parties' agreement. In this regard, the Arbitrator found that the grievant did not establish, as required by the parties' agreement, that he was incapacitated. The Union has not shown that the Arbitrator's interpretation of the agreement is irrational, implausible, or otherwise deficient. Rather, the Union's contention constitutes mere disagreement with the Arbitrator's interpretation and application of the parties' agreement and, as such, provides no basis for finding the award deficient. See, for example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 44 FLRA 283, 286 (1992).

B. The Arbitrator Did Not Exceed His Authority

We view the Union's claim that the Arbitrator "abused his authority" by seeking to evaluate the sufficiency of the physicians' statements and by substituting his judgment for that of the physicians as a contention that the Arbitrator exceeded his authority. Exceptions at 3. An arbitrator exceeds his or her authority when, among other things, the arbitrator resolves an issue not submitted to arbitration, or awards relief to persons who are not parties to the grievance. U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 45 FLRA 1139, 1141 (1992). The Union has not shown that the Arbitrator resolved an issue not properly before him, or granted relief to anyone who was not a party to the grievance. Moreover, the Union has not shown that the Arbitrator exceeded his authority in any other manner.

The Union's reliance on Bureau of the Public Debt is misplaced. In Bureau of the Public Debt, an arbitrator found, based on a provision in the parties' collective bargaining agreement, that the agency violated that provision 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. We denied exceptions to the award and noted, among other things, that the provision as interpreted and enforced by the arbitrator would not prevent the agency from obtaining relevant information about an employee's sick leave usage by obtaining required information from the employee's doctor. Accordingly, nothing in Bureau of the Public Debt, which involved a different contractual provision than the provision at issue in this case, demonstrates that the award in this case is deficient.

Similarly, we find that the Union's reliance on Warner Robins is misplaced. In Warner Robins, the grievant was charged with AWOL and suspended for 10 days because he had failed to follow the sick leave procedures in the parties' collective bargaining agreement by failing to telephone his workplace and report his condition. The grievance was denied by the arbitrator. On review of exceptions filed by the union, we concluded that the award was contrary to 5 C.F.R. part 630, subpart D, because the arbitrator sustained the grievant's suspension for AWOL based solely on the grievant's failure to follow established sick leave procedures without deciding whether the grievant had provided administratively acceptable evidence of incapacity for duty within the meaning of 5 C.F.R. § 630.403.(2)

We based our conclusion on the Merit Systems Protection Board's (MSPB) interpretation and application of 5 C.F.R. part 630, subpart D in Atchley v. Department of the Army, 46 MSPR 297, 301 (1990), where the MSPB held that "[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[.]"(3) Moreover, citing Miller v. Bond, 641 F.2d 997 (D.C. Cir. 1981) (Miller), we found that, under 5 C.F.R. § 630.403, an agency's discretion as to what documentation constitutes administratively acceptable evidence supporting a request for sick leave is limited only by the requirement of reasonableness. See Warner Robins, 41 FLRA at 638 (quoting Miller, 641 F.2d at 1003). We noted that the dispositive issue in Warner Robins was whether the grievant's documentation constituted administratively acceptable evidence of incapacity. Because the arbitrator failed to address that issue, we found that the award was contrary to 5 C.F.R.    part 630, subpart D.

In this case, the Arbitrator found that the supervisor had "the right to require additional medical documentation for the grievant's request for sick leave for August 8 and 9." Award at 11. The Arbitrator noted that the grievant's injury was not more serious than a 2nd degree burn. The Arbitrator also noted that the grievant's August 5 request for leave on August 7 and 8, together with the grievant's extended absence and the doctor's statement that the grievant could return to work on August 8, were sufficient to raise a "reasonable suspicion" in the mind of the supervisor. Id. at 12. Based on these circumstances, the Arbitrator concluded that the supervisor's request for additional medical documentation was "reasonable" and was "authorized" under the second sentence of Article 22, Section 1 of the parties' agreement. Id.

In contrast to Warner Robins, the Arbitrator in this case determined that the Agency reasonably concluded that the grievant's documentation in support of his request for sick leave was not sufficient and that additional documentation was necessary. The Union has not demonstrated that the Arbitrator's conclusion is inconsistent with 5 C.F.R. § 630.403. Specifically, the Union has not shown that 5 C.F.R. § 630.403 precludes the Agency from requesting additional documentation. To the contrary, 5 C.F.R. § 630.403 specifically provides that, for an absence in excess of 3 workdays, and for a lesser period when determined necessary by an agency, the agency may require a medical certificate or other administratively acceptable evidence as to the reason for the absence.

Moreover, as we st