47:0806(76)AR - - AFGE Local 1336 and HHS, SSA, Kansas City, MO - - 1993 FLRAdec AR - - v47 p806



[ v47 p806 ]
47:0806(76)AR
The decision of the Authority follows:


47 FLRA No. 76

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1336

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

KANSAS CITY, MISSOURI

(Agency)

0-AR-2393

_____

DECISION

June 7, 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 John P. DiFalco 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 filed an opposition to the Union's exceptions.

The grievance in this case concerned a letter of reprimand issued to the grievant by the Agency. The Arbitrator found that the letter of reprimand was issued for just cause and denied the grievance. For the following reasons, we conclude that the Union's exceptions fail to establish that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant has been employed by the Agency for 19 years. Because of an ongoing illness, the grievant had exhausted her annual leave and sick leave. On April 24, 1991, the grievant's supervisor informed her that the Agency would not approve her requests for leave without pay (LWOP) in the future "unless she was able to provide a 'compelling reason' for the request." Award at 2. On July 30, 1991, the grievant was given a letter of reprimand for her failure to follow the proper procedures for requesting leave. The grievant was also charged with being absent without leave (AWOL) on various dates between June 24, 1991 and July 29, 1991.

The grievant filed a grievance which was not resolved. The grievance was submitted to arbitration on the following issue:

Was the letter of reprimand issued to [the grievant] by the Agency for just cause? If not, what is the appropriate remedy?

Id. at 3.

Before the Arbitrator, the Agency asserted that the grievant had developed negative balances in sick leave and, at times, in annual leave and that, because of excessive use of LWOP, her supervisor required her to provide compelling reasons for any future LWOP request. The Agency also claimed that the grievant had received prior counseling and notices concerning her use of leave and her failure to comply with the Agency's requirements for requesting leave. The Agency argued that the letter of reprimand was justified because non-disciplinary measures had not corrected the grievant's behavior.

The Union argued before the Arbitrator that the letter of reprimand was not justified because the Agency had failed to consider that the grievant's continuing illness and child care problems required the use of leave. According to the Union, the grievant had complied with the Agency's leave request procedures, but her requests for leave and medical documentation had either not been kept by the Agency or had not been given to her supervisor.

The Arbitrator found that the Agency had been "very accom[m]odating" in advancing leave to the grievant and authorizing LWOP "when there [was] proper justification." Id. at 5. The Arbitrator also found that, under the parties' agreement, "leave without pay is not a right for employees, but merely a privilege which must be approved by Agency supervision." Id.

The Arbitrator stated that, in this case, the Agency had to "impose progressive and corrective sanctions to hopefully induce an employee to meet her obligations to the Agency." Id. The Arbitrator further stated that the parties acknowledged that the issue of leave abuse was "not to be the critical issue in the disciplinary action." Id. Rather, according to the Arbitrator, the Agency's concern was the grievant's "cavalier attitude" toward the procedures for requesting leave. Id. In this regard, the Arbitrator found that the grievant simply "did not show up on certain days and did not provide adequate documentation after being notified that she had to have 'compelling reasons' for leave requests . . . ." Id.

The Arbitrator concluded, based on the record, that there was reason to question the grievant's "rationale for excessive use of leave and most significantly her failure to obtain approved leave." Id. at 6. In particular, the Arbitrator found that there was no evidence that the medical documentation offered to him by the Union had ever been presented to the supervisor. The Arbitrator also found that, even if the documentation had been presented to the supervisor, it was so general as to establish the existence of a medical condition, but not "reason to be absent on a specific day." Id.

The Arbitrator also noted that the letter of reprimand was not a severe disciplinary action and that the Agency had taken steps that were progressive and corrective before issuing the letter of reprimand. The Arbitrator concluded that: (1) the Agency had proven its charges against the grievant; (2) the letter of reprimand was issued for just cause; and (3) the letter of reprimand "was well within the bounds of maximum reasonable penalties under the specific circumstances of this case." Id. Accordingly, the Arbitrator denied the grievance.

III. Positions of the Parties

A. Union's Exceptions

The Union contends that the Arbitrator's award is contrary to law, rule, and regulation. The Union asserts that the Agency kept no record of the grievant's medical documentation and that the Agency never questioned the validity of that documentation. According to the Union, under applicable Government-wide regulations, an agency must grant leave when the request for that leave is supported by medical documentation and LWOP is properly used for illness. The Union claims that the "preponderance of the evidence thus establishes that the grievant did submit properly signed medical documentation and/or applied for the leave in accordance with law, rules, and regulations. Exceptions at 2-3. The Union argues that the Agency's refusal to accept the grievant's medical documentation "constituted an abuse of discretion." Id. at 3.

The Union contends that the award is contrary to law because "the Arbitrator refused to apply or take judicial notice of the law, rules, and regulations that govern the usage of leave by the grievant." Id. The Union argues that the Arbitrator failed to consider the rules for granting leave. According to the Union, an agency may not deny a request for sick leave unless it can reasonably conclude that it has "probable cause to refuse a medical certificate in support of sick leave . . . ." Id. The Union also argues that, in accordance with 5 C.F.R. § 630.401(a), an agency must approve sick leave. The Union further argues that, in a prior arbitral decision, an arbitrator determined that "a Federal [a]gency lack[ed] probable cause to refuse a medical certificate in support of sick leave." Id.

The Union notes that the grievant had a negative sick leave balance and was denied the right to use annual leave in lieu of sick leave because of the Agency's error in withholding annual leave. According to the Union, a negative leave balance represents pay to which an employee is not entitled but which can be waived by an agency. The Union states, however, that "the Arbitrator never considered the grievant's right to request a hearing and waiver of the overpayment in accordance with 4 C.F.R. §§ 91 and 92." Id. at 4.

B. Agency's Opposition

The Agency contends that its failure to grant sick leave or LWOP to the grievant is not the issue in this case. According to the Agency, "the issue concerns the grievant receiving a reprimand because she failed to follow the rules for requesting and obtaining approval to be on sick leave." Opposition at 3. The Agency states that, on the dates in question, the grievant did not report for work or contact her supervisor or any other official to request leave. The Agency also states that the grievant had been counseled "concerning the proper way to request and receive approval of leave." Id. at 4. However, because of her excessive use of LWOP, the grievant was warned by her supervisor that compelling reasons would be required for future leave requests. The Agency asserts that the grievant "continued to flagrantly disregard the requirements for leave approval" and to be absent from work without authorization. Id. The Agency claims that the grievant "did not present any compelling evidence to warrant a grant of LWOP on a specific day." Id.

As to the Union's contentions regarding approval of LWOP under applicable Government-wide regulations, the Agency argues that the granting of LWOP under those regulations "still rests with an administrative decision based upon past experience with the employee who is making the request." Id. at 5. The Agency maintains that it accommodated the grievant when there was justification for her requests for LWOP, but asserts that "[t]he problem is the grievant's disregard for the rules for requesting leave." Id. The Agency also claims that, under the parties' agreement, "LWOP is not a right which accrues to an employee and may not be demanded." Id. at 6.

IV. Analysis and Conclusions

In its exceptions, the Union argues that the Arbitrator's award denying the grievance is deficient because the award failed to grant LWOP to which the grievant was otherwise entitled under applicable regulation. We find that the Union's exceptions do not provide a basis for finding the Arbitrator's award deficient under section 7122 of the Statute.

As the Arbitrator made clear, the issue presented by the grievance was whether there was just cause for the Agency's reprimand of the grievant based upon her failure to follow the prescribed procedures for requesting leave and reporting her absence to the proper management officials. Based on the record, the Arbitrator found that, despite repeated counseling and a specific warning from her supervisor, the grievant continued to ignore the Agency's prescribed procedures for reporting her absence and requesting leave. The Arbitrator also found that there was no evidence indicating that the grievant's medical documentation had been presented to her supervisor. The Arbitrator further found that the grievant's explanation of her use of leave was not supported by the medical documentation that she introduced into evidence. Based on these findings, the Arbitrator concluded that there was just cause for the letter of reprimand issued to the grievant.

The Union contends in its exceptions that a preponderance of the evidence demonstrates that the grievant properly applied for leave and provided sufficient documentation to require the Agency to grant her leave requests. The Union's contentions merely constitute disagreement with the Arbitrator's findings and with the reasoning that led him to conclude that there was just cause for the reprimand of the grievant. Disag