54:0110(15)AR - - AFGE Local 2006 & SSA, Philadelphia, PA - - 1998 FLRAdec AR - - v54 p110



[ v54 p110 ]
54:0110(15)AR
The decision of the Authority follows:


54 FLRA No. 15

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2006

(Union)

and

SOCIAL SECURITY ADMINISTRATION

PHILADELPHIA, PENNSYLVANIA

(Agency)

0-AR-2887

_____

DECISION

April 30, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members.

Decision by Member Cabaniss for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Charles A. Butler 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 Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator denied a grievance contesting a 1-day suspension imposed on the grievant for being Absent Without Leave (AWOL), failing to follow the rules and regulations for the request and use of leave, and leaving the worksite without requesting leave.

For the following reasons, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The Agency placed restrictions on the grievant's use of leave, requiring her to submit documentation for all absences, and notified her that failure to timely report leave and produce documentation for such leave could result in disciplinary action. Subsequently, over a period of 4 days (April 18-21, 1995), the grievant was absent from work for 21.75 hours, and did not document and/or request leave for such time. On one of these days, the grievant arrived several hours late without previous notice or documentation, and reported that her mother had had a heart attack. On this occasion, a supervisor met with the grievant to counsel her as to her leave restrictions. The Agency charged the grievant with 21.75 hours AWOL and suspended her for 1 day for being AWOL, failing to follow the proper procedures for requesting leave and leaving the worksite without asking for leave. The record contains only one medical certification covering the time period involved. That documentation pertained to the grievant's doctor's appointment on the morning of April 19, as noted by the Arbitrator. The Agency did not charge the grievant AWOL for these 4 hours.

The grievance was submitted to arbitration, and the Arbitrator framed the issue as follows:

Was the [g]rievant['s] . . . [1-day] suspension for just cause? If not[,] what should the remedy be?

Award at 1.

At the arbitration hearing, the grievant testified that she was unable to procure medical documentation for various reasons to cover her absences and that on one of the days, she was late because her mother had suffered a mild heart attack.

The Arbitrator found that the Agency had just cause to suspend the grievant. Specifically, the Arbitrator determined that the grievant: (1) was aware of the requirements to give notice and provide documentation for absences; (2) had been notified that continued failure to comply with the rules and regulations might lead to disciplinary action; (3) was familiar with the provisions of the Family Medical Leave Act (FMLA),(1) as she had previously taken time off under the provisions of this Act; (4) did not properly request leave; and (5) did not submit the required documentation for the dates in question. According to the Arbitrator, neither the grievant's medical condition nor her mother's heart attack excused the grievant from complying with the Agency's reasonable rules and regulations for requesting absences and providing medical documentation to support such absences. Moreover, noting that the grievant stated in a discussion with her supervisor that she could be charged AWOL as she was leaving for the rest of the day, the Arbitrator determined that the grievant's actions were disruptive to the efficiency of the Agency.

The Arbitrator also found that, although the Union argued that the Agency had assigned an improper designee to conduct the third step hearing process, the assignment of a designee to conduct the third step grievance hearing was an accepted practice between the parties. Additionally, the Arbitrator found that documentation of record showed that the grievant had previously "rejected the opportunity" to have Union representatives present at meetings with her supervisors concerning her leave abuses. Award at 3. Accordingly, the Arbitrator denied the grievance.

III. Positions of the Parties

A. Union's Exceptions

The Union contends that the Arbitrator misstated the issue as whether there was just cause for the grievant's 1-day suspension. According to the Union, the issue before the Arbitrator concerned the Agency's violation of Article 23, Section 1 of the parties' agreement.(2) The Union also argues that the Agency's disciplinary action was not justified because the grievant's actions were excused under the Federal Employees Family Friendly Leave Act (FEFFLA),(3) the FMLA, and Article 31, Section 5 of the parties' agreement.(4)

The Union claims that the Arbitrator misconstrued the pertinent facts, and that his decision is not supported by the evidence presented or the testimony given. The Union argues that the Arbitrator did not properly consider testimony by the grievant's supervisor that the grievant told the supervisor she was leaving work on April 18 because she was sick, or evidence that the grievant had submitted medical documentation regarding her absence on April 19. According to the Union, under Hockman v. American Battle Monuments Commission, 12 MSPR 642, 645 (1982) (Hockman), when the grievant gave a valid reason for the leave request, the Agency was required to prove the reason was not bona fide.

The Union also asserts that the Arbitrator's decision that the assignment of a designee for the third step grievance hearing was an accepted practice was not supported by the evidence.

According to the Union, testimony presented at the hearing showed that a meeting between the grievant and a supervisor that occurred in April 1995, was a formal discussion. The Union maintains that, because the meeting occurred without Union representation, it violated Article 2, Section 3C of the parties' agreement and section 7114(a)(2)(A) of the Statute.(5)

B. Agency's Opposition

The Agency contends that the Arbitrator properly framed the issue. The Agency argues that the grievant failed to follow proper procedures to request and support leave under the FEFFLA, FMLA, and/or the parties' agreement. The Agency asserts that the award is consistent with the parties' agreement.

According to the Agency, the meeting referenced by the Union was routine counseling regarding the grievant's leave restrictions. The Agency maintains that the parties' agreement and section 7114(a)(2) do not require a Union representative to be invited to the meeting, if the purpose of the meeting was personal. The Agency also contends that "the [grievant] was well aware that she would have been allowed a [U]nion representative if she so requested[,]" but that she did not request such representation. Opposition at 2.

IV. Analysis and Conclusions

A. The Award Is Not Contrary to the FEFFLA or the FMLA. (6)

Under section 7122(a)(1) of the Statute, an arbitration award will be found deficient if it conflicts with any law, rule or regulation. Overseas Education Association and U.S. Department of Defense Dependents Schools, Arlington, Virginia, 51 FLRA 1246, 1251 (1996). One of the Union's exceptions raises the question of whether the Agency's disciplinary action was justified because the grievant's actions should be excused under the FEFFLA and the FMLA. As this exception involves the award's consistency with applicable regulations, the Authority reviews the questions of law raised by the Arbitrator's award and the Union's exception de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995).

The Union contends that the Agency's disciplinary action was not justified, because the grievant's absences were excused under both the FEFFLA and FMLA. Enacted in 1994, FEFFLA revised existing provisions pertaining to Federal employees' sick leave. The FMLA, enacted in 1993, set forth new rights and obligations regarding both annual and sick leave for public and private sector employees.

Existing sick leave law pertaining to Federal employees, as implemented by 5 C.F.R. § 630.403, provided that an agency may require medical documentation or other administratively acceptable evidence to substantiate a request for sick leave. The FEFFLA revision expanded the permissible grounds for sick leave as well as the amount of time allowed for sick leave. However, it did not alter the Agency's right to require corroborative documentation. Consequently, prior Authority precedent in this regard was unaffected by the FEFFLA.

Similarly, the provisions of the FMLA permit the employer to require medical certification for absences.(7) Regulations implementing the FMLA, 29 C.F.R. § 825.311,(8) specifically state that if the employee does not produce proper certification, the leave will not be considered FMLA leave and the employee can be considered AWOL. Additionally, the Office of Personnel Management (OPM), in its Final Rules and Regulations, explained that "[a]n employee may not retroactively invoke his or her entitlement to FMLA leave for a previous absence from work." Family and Medical Leave, 61 Fed. Reg. 64,445 (1996) (codified at 5 C.F.R. § 630.1203(b) (1998)).

Under the FMLA, when an employee's unscheduled absence satisfies the requirements of the FMLA, the agency's charge of AWOL must be scrutinized in light of the employee's rights and requirements under FMLA. See Manuel v. Westlake Polymers Corp., 66 F.3d 758, 760 (5th Cir. 1995) (Manuel). The court in Manuel held that an employee does not need to request family medical leave to get the protection of the FMLA. Id. at 764. However, OPM, in its Final Rules and Regulations, revised 5 C.F.R. § 630.1203(b) to clarify that an employee who chooses to take FMLA leave must request entitlement to such leave. 5 C.F.R. § 630.1203(b) (1998).

Consistent with the decisions of the Merit Systems Protection Board (MSPB), the Authority has held that an employee is entitled to sick leave, and may not be charged AWOL, when the employee submits administratively acceptable evidence of illness prior to the disciplinary action. American Federation of Government Employees, Local 2408 and U.S. Department of Veterans Affairs Medical Center, San Juan, Puerto Rico, 52 FLRA 992, 995-96 (1997) (VAMC, San Juan); see also, U.S. Department of the Air Force, Robins Air Force Base, Warner Robins, Georgia and American Federation of Government Employees, Local 987, 41 FLRA 635, 639 (1991) (Warner Robins).

The Authority has held that an arbitrator cannot sustain an agency's discipline of a grievant for AWOL solely on the basis of failure to follow sick leave procedures without deciding whether the grievant submitted "administratively acceptable evidence" to support an absence. Warner Robins, 41 FLRA at 640. Under 5 C.F.R. § 630.403, administratively acceptable evidence may be, but is not limited to, such documentation as the employee's certification as to the reason for the absence or a medical certificate.(9) An agency's discretion as to whether an employee's documentation constitutes "administratively acceptable" evidence is limited only by the requirement of reasonableness. VAMC, San Juan, 52 FLRA at 996 n.6 (citing Miller v. Bond, 641 F.2d 997, 1003 (D.C. Cir. 1981)).

In the instant case, the Arbitrator found that although the grievant was required by the Agency to submit medical documentation showing the reasons for her absences, the grievant did not do so. The record contains only one medical certification for the time period in question, for which the Agency did not charge the grievant AWOL. The Arbitrator also found that the record showed that the grievant was familiar with the requirements for FMLA leave as she had taken FMLA leave previously. Thus, the Arbitrator determined that the grievant's statements, without the requisite medical documentation as required by Agency, did not constitute administratively acceptable evidence.

Upon de novo review, we find that, based on his factual findings, the Arbitrator properly sustained the Agency's 1-day suspension of the grievant for being AWOL on the basis of the grievant's failure to follow sick leave procedures, and correctly considered the issue of whether the grievant presented administratively acceptable evidence of incapacity in support of her absences.

The Hockman decision, cited by the Union, is distinguishable from this case. In that case, the MSPB did not find that the employee failed to request or provide reasons for the absence. Rather, the MSPB found that the agency erred by not proving that the employee's request and reason were not bona fide. In the instant case, the Agency never challenged the grievant's reasons for her absences. The Agency simply required the grievant to report her unscheduled absences in a timely manner and submit documentation to corroborate such absences. The Arbitrator found that the grievant failed to do either.

Thus, neither the FEFFLA nor the FMLA relieves employees of the responsibility to properly document such absences, as required by an Agency. Accordingly, the Arbitrator's award is not contrary to the FEFFLA or the FMLA.

B. The Arbitrator Did Not Exceed His Authority.

Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, disregard specific limitations on their authority, or award relief to parties not included within the grievance. See U.S. Department of the Navy, Naval Base, Norfolk, Virginia and American Federation of Government Employees, Local 22, 51 FLRA 305, 307-08 (1995).

With respect to the Union's claim that the Arbitrator misstated the issue, the record indicates that in its written opening statement, the Union specifically stated that the issue before the Arbitrator was "whether or not the suspension was for just cause." Attachment 1 to Exceptions. The parties did not stipulate to the issue and, in the absence of a stipulated issue, arbitrators are afforded great deference in framing the issues. American Federation of Government Employees, Local 916 and Defense Distribution Depot, Oklahoma City, Oklahoma, 50 FLRA 244, 247 (1995). The Arbitrator framed the issue consistent with the Union's statement thereof and the award is responsive to that issue. Therefore, the Union has failed to show that the Arbitrator exceeded his authority, and we deny the exception.

C. The Award Is Not Based On A Nonfact.

We construe the Union's contention that the Arbitrator's award misstated the facts as an assertion that the award is based on a nonfact.

To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)). The mere fact that the appealing party disputes an arbitral finding of fact does not provide a basis for concluding that an award is based on a nonfact. American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Finance Administration, Baltimore, Maryland, 51 FLRA 576, 579 (1995).

According to the Union, the Arbitrator's decision regarding the procedures relating to the third step hearing was not corroborated by the record. The Union also challenges the Arbitrator's findings pertaining to documentation for leave. The record demonstrates that these factual matters were disputed by the parties at arbitration. Hence, the Union's assertion does not provide a basis for finding the award deficient based on a nonfact, and we deny the exception.

D. The Award Draws Its Essence from the

Parties' Agreement.

In order for an award to be found deficient because it does not draw its essence from the collective bargaining agreement, a party must show 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 for the agreement; or (4) does not represent a plausible interpretation of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990) (OSHA). The Union has failed to establish that the Arbitrator's award is implausible, irrational or in manifest disregard of the parties' agreement.

1. Article 31, Section 5

We construe the Union's contention that the Arbitrator did not properly interpret Article 31, Section 5 of the parties' agreement as a claim that the award does not draw its essence from the parties' agreement.

While Article 31, Section 5 requires the employee to request approval for unscheduled leave by the end of the employee's scheduled shift or risk a charge of AWOL for the unapproved leave, it allows a later change in leave for "good and sufficient reasons." The Arbitrator specifically found that the grievant knew of the requirements to request leave and submit documentation in association with taking leave, but the grievant failed to request leave for the majority of the time for which she was charged AWOL or provide documentation for any of the time charged AWOL. Thus, the Arbitrator's award, given his findings, is not an implausible result under the parties' agreement.

Accordingly, the Union has not demonstrated that the Arbitrator's award fails to draw its essence from the agreement.

2. Article 2, Section 3C

We construe the Union's contention that the award is deficient because the Arbitrator failed to find that the Agency violated Article 2, Section 3C of the parties' agreement as a claim that the award does not draw its essence from the parties' agreement.

The parties' agreement provides in Article 2, Section 3C that the Union shall be given the opportunity to be represented at any formal discussion with a representative of the Agency and one or more employees or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment.

As set forth above, the parties have bargained for the arbitrator's construction of the agreement; therefore, the question of interpretation of the parties' agreement is a question solely for the arbitrator. OSHA, 34 FLRA at 576. The Arbitrator found only that the supervisor met with the grievant to counsel her as to her leave restrictions. The Union has failed to show that this finding of the Arbitrator is implausible, irrational or in manifest disregard of Article 2, Section 3C of the parties' agreement.

Consequently, the Union has not established that the Arbitrator's award fails to draw its essence from the agreement, and we deny the exception.

V. Decision

The Union's exceptions are denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. 5 U.S.C. §§ 6381-87 (1996).

2. Article 23, Section 1 states in pertinent part that,

The parties agree that the objective of discipline is to correct and improve employee behavior so as to promote the efficiency of the service. The parties agree to the concept of progressive discipline designed primarily to correct and improve employee behavior. Bargaining unit employees will be the subject of disciplinary or adverse action only for just cause.

3. 5 U.S.C. § 6307 (1996).

4. Article 31, Section 5, in pertinent part, states:

If the use of annual or sick leave cannot be anticipated, the request for approval shall be called in within one (1) hour after the start of the employee's normal tour of duty, . . . or as soon as possible thereafter. . . . In the event the employee does not report during the reporting period, the supervisor will not record the leave status until the end of the scheduled shift, . . . If the employee's leave status has not been clarified by the end of the shift, the absence may be charged to AWOL. This will not preclude a later change in leave status for good and sufficient reasons.

5. Article 2 provides, in pertinent part, that,

Section 3-Communications with Bargaining Unit Employees

. . .

C. Consistent with 5 U.S.C. 7114(a)(2)(A), . . . the Union shall be given the opportunity to be represented at any formal discussion between one or more representatives of the Agency and one or more employees or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment. . . .

6. As part of its argument that the award is contrary to law, the Union also contends that the Agency violated section 7114(a)(2)(A) of the Statute by holding a formal discussion. The Arbitrator made no finding regarding a statutory violation and the record does not reflect that this allegation of a statutory violation was raised before the Arbitrator. Accordingly, under section 2429.5 of our Regulations, which states in relevant part that the Authority will not consider issues which were not presented in proceedings before the arbitrator, this issue is not properl