U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, Local 734

[ v55 p1103 ]

55 FLRA No. 178

U.S. DEPARTMENT OF THE NAVY
NORFOLK NAVAL SHIPYARD
PORTSMOUTH, VIRGINIA
(Agency)

and

TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL TRADES
COUNCIL, LOCAL 734
(Union)

0-AR-3138

_____

DECISION

November 30, 1999

_____

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 David A. Singer, Jr. filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union did not file an opposition to the Agency's exceptions.

      The Arbitrator sustained a grievance alleging that the Agency had improperly denied sick leave to the grievant. For the reasons that follow, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

A.     Background

      On June 15, 1995, the grievant had a discussion with his supervisor during which the grievant was advised that if his sick leave did not improve, he would be required to furnish a medical certificate to support any application for sick leave involving 3 workdays or less. On October 23, 1996, the grievant was issued a Notification of Requirement for Medical Certification memorandum (October memorandum), and advised that he would be required to submit a medical certificate for each subsequent absence or illness regardless of the number of days involved. On May 5, 1997, the grievant received an amendment to the October memorandum (May memorandum).

      The memoranda were almost identical, but there were two differences. The October memorandum required the grievant to substantiate the report of illness, while the amended memorandum required the grievant to substantiate the report of sick leave usage. [n1] 

      The record also contains detailed information about the grievant's longstanding recurring abdominal medical condition and an on-the-job back injury. In a letter dated May 30, 1997, the grievant's physician declared him to be a longstanding patient who was seen recently for a recurring medical condition that should not interfere with his ability to perform work responsibilities. [n2] 

      On June 18, 1997, the grievant requested sick leave for a June 16 absence related to his back injury. On June 26, 1997, the grievant requested sick leave for absences on June 23, 24, and 25 related to his abdominal illness. Both sick leave requests were denied, based upon the conditions in the October and May memoranda. The Union grieved the sick leave denials and when the grievance was not resolved it was submitted to arbitration.

B.     Arbitrator's Award

      The Arbitrator framed the issue before him as:

Was [the grievant] improperly denied sick leave, and, if so, what is the appropriate remedy?

Award at 1. The Arbitrator addressed several elements of testimony from the arbitration hearing and made findings. As relevant here, the Arbitrator found that the Union established that the grievant suffered from recurring abdominal illness and that the records suggest that his back problems are of a recurring nature. The Arbitrator also addressed the differences between the October and the May memoranda. The Arbitrator concluded that he could "comfortably declare differences to be 'much ado about nothing.'" Id. at 18.

      Next, turning to the parties' agreement, the Arbitrator found that Article 20, Section 4 requires medical certification of recurring illness or injury as a prerequi- [ v55 p1104 ] site to self-certification. [n3]  The Arbitrator concluded that the grievant produced the required certification, especially relative to his abdominal illness and satisfied the stipulations set forth in Section 4. The Arbitrator noted that "[t]he fact is, the Agency just does not like it." Id. at 19.

      As to the question of whether the grievant had abused his sick leave, the Arbitrator stated that "[t]he [g]rievant, in my opinion, has not conserved his sick leave." Id. However, the Arbitrator found that the Agency had not produced one iota of evidence sufficient to substantiate its charge of sick leave abuse. The Arbitrator also found that the October and May memoranda to the grievant could not negate any part of Article 20. Therefore, the Arbitrator concluded that the recurring illness or injury provision of Article 20, Section 4 was applicable, and that the grievant's self-certification of the sick leave requests complied with the agreement. The Arbitrator sustained the grievance and directed that the leave requests be granted and that the letter of reprimand be removed from the grievant's record.

III.      Agency's Exceptions

      The Agency contends that 5 C.F.R. § 630.403 preserves an Agency's right to require acceptable medical evidence from those employees who have questionable sick leave records. The Agency asserts that the form of this acceptable medical evidence is an Agency determination. The Agency also asserts that Article 20 of the parties' agreement reflects the procedures to be followed for the exercise of these rights. According to the Agency, the award ignores this basic Agency right preserved by the regulation and the subsequent right to discipline employees who do not comply with directives issued by the Agency to furnish medical information. The Agency maintains that the award is thus contrary to the Agency's right to discipline as set forth in section 7106(a)(2)(A) of the Statute and its right to require medical certification from employees for use of sick leave under 5 C.F.R. § 630.403. [n4] 

      The Agency also contends that the Arbitrator misconstrued the issue of the grievance because the issue of sick leave abuse was not at issue in this case. The Agency argues that if that had been the issue, then the grievance would have been untimely. The Agency asserts that it had the right, under Article 20, Section 3 of the parties' agreement to require the grievant to submit certification for use of sick leave and to discipline the grievant when he did not comply with that requirement. The Agency contends that the Arbitrator exceeded his authority and substituted his judgment for the judgment of the Agency and did so on an issue not before him.

      Finally, the Agency claims that the Arbitrator has mistakenly made a connection between Sections 3 and 4 of Article 20 of the parties' agreement. The Agency asserts that while these sections may be related they are not contingent on each other for application. The Agency maintains that permitting an employee to submit a self-certification, when the employee knew that he was under a medical certification requirement, defeats the purpose of requiring medical certification from an employee who has abused use of sick leave.

      Specifically, the Agency contends that Article 20, Section 3 of the parties' agreement provides for the issuance of medical certification requirements and that the award defeats the purpose of those requirements by permitting the employee's self-certification. The Agency further contends that the Arbitrator was incorrect when he stated that the October and May leave restriction memoranda do not carry the "imprimatur of both parties" and are, therefore, not sufficient to negate or amend Article 20 of the agreement. Exceptions at 7. The Agency responds to the Arbitrator by asserting that nothing in the agreement prevents the Agency from exercising its right to discipline. The Agency asserts that it did exercise its rights "in accordance with the parties' negotiated agreement and no contract violation occurred" and that its actions did not "supercede the contract" when it issued the grievant the medical certification requirement letters. Id. [ v55 p1105 ]

IV.     Analysis and Conclusions

A.     The Award Is Not Contrary to Law and Regulation

1.     5 C.F.R. § 630.403

      The Agency has not demonstrated how the award is contrary to 5 C.F.R. § 630.403. That regulation provides that an agency may consider an employee's certification as to the reason for his or her absence. The regulation also provides that for absences in excess of 3 workdays or for a lesser period when determined necessary by an agency, the agency may also require a medical certificate or other acceptable evidence as to the reason for an employee's absence. In this case, the Agency had issued the employee medical certification requirement letters stating that he would be required to submit medical certification for his absences.

      The Arbitrator found that Article 20, Section 4 of the parties' agreement provides for self-certification of absences due to a recurring medical condition. The Arbitrator further found that the grievant had submitted a letter from his physician regarding his longstanding recurring abdominal condition and further that the employee had suffered a back injury on-the-job. Under the parties' agreement, the Arbitrator found that, even though the grievant was under a leave restriction, the grievant was not required to submit medical evidence to substantiate absences of 3 days or less related to the recurring medical conditions. As the absences in question were for 3 days or less and related to recurring medical conditions, the Arbitrator concluded that, regardless of the leave restriction letters given the grievant, under Article 20, Section 4 of the parties' agreement, the grievant could self-certify his absences related to his recurring medical conditions. Therefore, the Agency has not shown how the award is contrary to 5 C.F.R. § 630.403.

2.     Section 7106(a)(2)(A)

      The Agency argues that the award violates its management right to discipline. We review the questions of law raised by this assertion and the Arbitrator's award de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, we assess whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the arbitrator's underlying factual findings. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, we defer to the Arbitrator's underlying factual findings. See id.

      Where an agency asserts that an arbitrator's award violates management's rights, the Authority first determines whether the award affects management's rights. See United States Small Business Administration and American Federation of Government Employees, Local 2951, 55 FLRA 179, 184 (1999). If it does, then the Authority applies the two-prong test set forth in U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997) (BEP). If the award does not affect management's rights, then the BEP analysis is not required.

      Under prong I of the BEP framework, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of section 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to section 7106(b) of the Statute. Id. at 153. If the award provides such a remedy, the Authority will find that the award satisfies prong I of the framework and will then address prong II. Under prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, the Authority will find that the award satisfies prong II.

      With respect to prong I, the Arbitrator found that Article 20, Section 4 of the parties' agreement provides for self-certification of sick leave usage for illness of a recurring nature. In this regard, the Arbitrator found that the grievant had established the recurring nature of both his abdominal medical condition and his back injury. The Arbitrator concluded that although Article 20, Section 3 of the parties' agreement permits the Agency to require certification for use of sick leave, that provision could not negate the provision for self-certification of absence for sick leave due to a recurring injury as set forth in Article 20, Section 4, negotiated pursuant to section 7106(b) of the Statute. In that regard, the Authority has determined that agreement proposals that address requesting and granting sick leave are not inconsistent with 5 C.F.R. § 630.403 and constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute. See, e.g., National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 678-82 (1991). Accordingly, the award [ v55 p1106 ] provides a remedy for a violation of an agreement provision that satisfies prong I of the BEP framework.

      With regard to prong II, we find that the Arbitrator reconstructed what the Agency would have done had Article 20, Section 4 been followed. Had the Agency not improperly refused the grievant's self-certification of his recurring illness and injury, pursuant to Article 20, Section 4 of the parties' agreement, the sick leave would have been granted. Thus, the award reconstructs what the Agency would have done had it initially acted properly. Therefore, the award satisfies prong II of BEP. Accordingly, we deny the exception.

B.     The Arbitrator Did Not Rule on an Issue that was not before him

      Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority or award relief to those not encompassed within the grievance. See, e.g., American Federation of Government Employees, Local 1617 and U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, 51 FLRA 1645, 1647 (1996). In the absence of a stipulated issue, the arbitrator's formulation of the issue is accorded substantial deference. See U.S. Department of the Army, Corps of Engineers, Memphis District, Memphis, Tennessee and National Federation of Federal Employees, Local 259, 52 FLRA 920, 924 (1997).

      In this case, the parties did not stipulate the issue for the Arbitrator to resolve. The Arbitrator framed the issue as: "Was [the grievant] improperly denied sick leave, and, if so, what is the appropriate remedy?" Award at 1. To resolve this issue and respond to the arguments presented before him by the parties, the Arbitrator examined the parties' agreement, the leave certification letters sent to the grievant, the grievant's leave usage record, and the grievant's medical history. The Arbitrator examined the denial of sick leave in the context of the certification requirements imposed on the grievant by the Agency.

      There is nothing in the record to demonstrate that the Arbitrator was limited to basing his conclusion only on Article 20, Section 3. Instead, the Arbitrator examined all of Article 20, and determined that Section 4 of that Article was applicable. In making these findings, the award was directly responsive to the issue as formulated by the Arbitrator. The Agency has failed to demonstrate that the Arbitrator exceeded his authority and we deny the exception.

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

      For an arbitrator's award to be found deficient as failing to draw its essence from a collective bargaining agreement, it must be established 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 purpose of the collective bargaining agreement as to "manifest an infidelity to the obligation of the arbitrator"; (3) does not represent a plausible interpretation of the agreement; or (4) cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement. American Federation of Government Employees, Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998); United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990).

      We find that the Agency's exception fails to meet any of the above stated criteria. As noted, supra, the Arbitrator made the award based on his framing of the issue, because the parties did not agree on an issue to submit to arbitration. The Arbitrator resolved the issue before him by relying on Article 20, Section 4, instead of Section 3 as the Agency might have preferred. The Agency has not demonstrated that the Arbitrator's application of Section 4 fails to draw its essence from the agreement. Therefore, in the absence of any assertion other than the one noted, the Agency has not shown that the Arbitrator's award is irrational, implausible, unfounded, or that it evidences a manifest disregard of the collective bargaining agreement, and we deny the exception.

V.     Decision

      We deny the Agency's exceptions. [ v55 p1107 ]


APPENDIX

5 U.S.C. § 7106(a)(2)(A) provides:

§ 7106.      Management rights
(a)     Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency-
 
(2)     in accordance with applicable laws-
     (A)     to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees[.]

5 C.F.R. § 630.403 provides:

§ 630.403     Supporting evidence.
An agency may grant sick leave only when supported by evidence administratively acceptable. Regardless of the duration of the absence, an agency may consider an employee's certification as to the reason for his or her absence as evidence administratively acceptable. However, for an absence in excess of 3 workdays, [or] for a lesser period when determined necessary by an agency, the agency may also require a medical certificate or other administratively acceptable evidence as to the reason for an absence for any of the purposes described in § 630.401(a).





Footnote # 1 for 55 FLRA No. 178 -

   On November 14, 1997, the shop superintendent issued a memorandum stating that leave usage had improved and that the requirement to have a medical certification for each illness regardless of the number of hour or days involved was withdrawn for sick leave of 24 hours or less.


Footnote # 2 for 55 FLRA No. 178 -

   It is not clear from the record when the May 30 physician's letter was first shared with the Agency.