50:0449(65)AR - - AFGE, Local 3184 and SSA, Pasadena, Texas - - 1995 FLRAdec AR - - v50 p449



[ v50 p449 ]
50:0449(65)AR
The decision of the Authority follows:


50 FLRA No. 65

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3184

(Union)

and

SOCIAL SECURITY ADMINISTRATION

PASADENA, TEXAS(1)

(Agency)

0-AR-2653

_____

DECISION

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.

III. Exceptions

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 seriou