50:0449(65)AR - - AFGE, Local 3184 and SSA, Pasadena, Texas - - 1995 FLRAdec AR - - v50 p449
[ v50 p449 ]
The decision of the Authority follows:
50 FLRA No. 65
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
SOCIAL SECURITY ADMINISTRATION
May 31, 1995
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Joe D. Woodward 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 three consolidated grievances, one concerning the manner in which management verified a medical certificate submitted by the grievant to substantiate a sick leave request, and two concerning management's placement of the grievant on sick leave restrictions.
For the following reasons, we conclude that the Union's exceptions fail to establish that the award is deficient under section 7122(a) of the Statute. Therefore, we deny the exceptions.
II. Background and Arbitrator's Award
As a result of the grievant's frequent absences from work, she was counseled and informed that continued usage of sick and unscheduled annual leave would result in her being placed on leave restrictions. The grievant then used 2 days of unscheduled sick leave and, subsequently, submitted a doctor's certificate in support of that leave. Although the supervisor was suspicious about the certificate and went to the grievant's doctor's office to verify its authenticity, the grievant's sick leave for those 2 days was ultimately approved. The Union filed a grievance alleging a violation of the Privacy Act, 5 U.S.C. § 552a, improper investigation of a leave certificate, harassment and a violation of Article 31 of the parties' agreement.(2)
After the grievant continued to use a significant amount of sick and unscheduled annual leave, the supervisor imposed leave restrictions on the grievant. The Union then filed a second grievance, alleging a violation of Article 31.
When the grievant's leave usage improved, the supervisor lifted the restrictions. However, after the grievant resumed her previous leave use pattern, she again was counseled and placed on sick leave restrictions. The Union then filed a third grievance, alleging a violation of Article 31 of the parties' 1994 agreement, which contained the same wording as the 1990 agreement.
The grievances were consolidated and proceeded to arbitration, where the parties stipulated to the following issues:
Did the agency violate the collective bargaining agreement when the agency's [officials] went to the doctor's office to inquire about the authenticity of [the doctor's certificate] . . . and if so, what shall the remedy be?
Did the agency violate the collective bargaining agreement when it placed the grievant on sick leave restriction [in] January . . . 1993 [and February 1994] and if so, what shall the remedy be?
Award at 8-9.
As relevant here, the Arbitrator denied the grievances.(3) With regard to the first grievance, the Arbitrator found that management's visit to the doctor's office was proper, based on management's responsibility to periodically review employees' leave records, and on the grievant's leave usage pattern, which, according to the Arbitrator, showed "leave abuse." Id. at 10-11. The Arbitrator determined that the Union had failed to meet its burden of showing that the Agency intended to harass the grievant or to violate her privacy. Moreover, the Arbitrator noted that the Agency ultimately approved her leave request for the 2 days in question.
As to the second grievance, the Arbitrator concluded that, based on the supervisor's obligation to administer and record leave requests and usage, the Agency had properly investigated the grievant's leave usage. In this connection, the Arbitrator found that the supervisor and the grievant discussed the grievant's leave usage, the supervisor documented the counseling session in writing, and the grievant initialed the documenting memorandum. The Arbitrator also concluded that, based on the evidence of the grievant's leave usage pattern, the Agency properly imposed the leave restrictions.
Finally, as to the third grievance, the Arbitrator concluded that the Agency properly imposed leave restrictions based on evidence of the grievant's resumption of her prior leave usage pattern.
The Union contends that the award violates the Family and Medical Leave Act, 5 U.S.C. § 6382. The Union also contends that the award is contrary to the Agency's Personnel Manual for Supervisors (the Manual), which, according to the Union, requires that employees be counseled prior to being placed on leave restrictions. The Union further contends that the award is contrary to the Manual's provisions concerning the procedures that supervisors should use to determine the authenticity of medical certificates. In addition, the Union asserts that the award is contrary to Article 31 of the 1990 and 1994 agreements because the Agency failed to provide the grievant with counseling before imposing leave restrictions, and because, according to the Union, the medical certificates the Agency demanded from the grievant during a holiday period and when the grievant was on sick leave restriction were not required.
IV. Analysis and Conclusions
A. Contrary to Law
The Union has not specified the manner in which it believes that the award violates the Family and Medical Leave Act, which permits employees to request leave for serious illness. Moreover, no violation is apparent to us. Accordingly, we deny this exception.
B. Contrary to Rule or Regulation(4)
The Union has not demonstrated that the award is inconsistent with the Manual's requirement that employees be counseled prior to being placed on leave restrictions. In this regard, the Union acknowledges, and the Arbitrator concluded, that the supervisor and the grievant discussed the grievant's leave usage, the supervisor documented the counseling session in writing, and the grievant initialed the documenting memorandum. In these circumstances, the Union has not established that the award conflicts with the Manual.
The Union also has failed to demonstrate that the award is inconsistent with the Manual's requirements concerning the verification of medical certificates. The Arbitrator concluded that, in the circumstances of this case, the supervisor's visit to the grievant's doctor's office to verify the medical certificate was proper, based on the grievant's leave usage pattern and on the Union's failure to demonstrate that the supervisor intended to harass the grievant or to violate her privacy. The Union has not established that, in this regard, the award conflicts with the Manual. Accordingly, we deny this exception.
C. Essence of the Agreement
We construe the Union's argument that the award is contrary to Article 31 of the 1990 and 1994 agreements as an argument that the award fails to draw its essence from the agreements. To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement, or evidences a manifest disregard of the agreement. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990).
The Union has not demonstrated that the Arbitrator's interpretation of the agreements is deficient under any of these standards. The Arbitrator concluded that the Agency complied with: (1) the 1990 agreement, as the Arbitrator interpreted it, in counseling the grievant; and (2) the 1994 agreement, as the Arbitrator interpreted it, in requiring the grievant to submit a medical certificate. The Union has not shown that either of these conclusions is implausible, irrational, or otherwise deficient. Accordingly, we deny this exception.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. During the pendency of this case, the Social Security Administration, previously an agency within the U.S. Department of Health and Human Services, was established as an independent agency.
2. Article 31 of the 1990 Agreement, entitled "Time and Leave," provides, in relevant part:
B. Employees normally shall not be required to furnish a medical certificate to substantiate a request for approval of sick leave unless sick leave exceeds three consecutive workdays. In cases where the nature of the illness is such that an employee did not need to see a medical practitioner, a medical certificate may not be required if the employee provides an acceptable explanation.
C. In individual cases, if there is evidence that an employee's leave pattern may indicate that an abuse of sick leave exists, the employee shall first be advised by an interview, which shall be recorded in the SF-7B file, of the reasons a medical certificate may be required for each subsequent absence of sick leave.
If the employee's leave pattern continues, the employee will be advised in writing as to whether an acceptable medical certificate may be required for each subsequent absence for which sick leave is requested.
The sick leave usage of all employees under sick leave restriction will be reviewed at least every six (6) months and a written decision to continue or lift the restrictions made; if the review shows significant improvement, the supervisor will lift the restriction.
Attachment to Exceptions at 107.
3. The portion of the award ordering the Agency to rescind an AWOL charge for one of the grievant's absences and to amend her personnel records to reflect that she was properly on sick leave on that date is not in dispute in this case, and will not be discussed further in this decision.
4. For purposes of th