American Federation of Government Employees, Local 3631 (Union) and U.S. Environmental Protection Agency, Region III (Agency)

[ v57 p42 ]

57 FLRA No. 13

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3631
(Union)

and

U.S. ENVIRONMENTAL PROTECTION
AGENCY, REGION III
(Agency)

0-AR-3357

_____

DECISION

March 30, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members.

Decision by Member Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator Joseph B. Bloom 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 exception.

      The Arbitrator denied a grievance alleging that the Agency violated the parties' collective bargaining agreement when it refused to approve the grievant's request for advanced sick leave and refused to sign the grievant's application for leave to the Agency's Leave Bank Board. The Union excepts to the Arbitrator's award on the ground that it is contrary to the law that established the leave bank program.

      For the following reasons, we deny the Union's exception.

II.     Background and Arbitrator's Award

A.     Background

      The grievant was an environmental protection specialist at the time this grievance arose. On Monday, September 22, 1997, the grievant was examined by her doctor. As a result of this examination, the grievant's doctor prepared a medical note dated September 25, stating that the grievant's emotional and medical condition necessitated her absence from work from September 30, 1997 through October 31, 1997.

      On Monday, September 29, the grievant picked up the note and arrived at her office at 1:30 p.m. She then completed the forms required for her sick leave request and placed them in her supervisor's in-box after 5:00 p.m. Because the grievant did not have sufficient leave to cover her upcoming absence, she requested that she be granted advanced sick leave. She also applied to the Agency's leave bank program for a grant of leave to cover her absence. When the grievant's supervisor learned of the advanced sick leave request she refused to approve it. The supervisor also forwarded the grievant's application for leave from the leave bank program without signing it. Since the application to the leave bank lacked supervisory approval, the Agency's Leave Bank Board found the application incomplete and did not approve it.

      Thereafter, the Union filed a grievance alleging that the grievant's supervisor did not have just cause for refusing to sign the grievant's leave bank application. When the grievance was not resolved, it was submitted to arbitration on the following issue, as framed by the Arbitrator:

Did the Employer violate the collective bargaining agreement when it denied the [g]rievant's request for sick leave? If so, what shall the remedy be?

Award at 2.

B.     Award

      The Arbitrator concluded that the Agency did not violate the parties' agreement and denied the grievance. In reaching this result, the Arbitrator first declined to consider the Union's claim that the Agency's denial of sick leave was motivated by bias because the grievant had filed a number of equal employment opportunity complaints against the Agency. The Arbitrator noted that under Article 33, Section 3 of the parties' agreement, an arbitrator is only authorized to consider issues and allegations that were raised at the final step of the grievance procedure. [n1]  Finding no indication that the Union had previously [ v57 p43 ] advanced a discrimination claim, the Arbitrator found that he was not authorized to consider one.

      The Arbitrator next declined to consider the Union's claim that the grievant's supervisor did not have "just cause" for refusing to sign her sick leave applications. According to the Arbitrator, the concept of "just cause" is "exclusively restricted to the arena of employee discipline." Award at 15. Pursuant to his finding that the instant grievance did not involve discipline, the Arbitrator concluded that the concept of just cause was not applicable to this proceeding.

      The Arbitrator also rejected the Union's assertion that the Agency violated the parties' agreement by refusing to grant a valid sick leave request. The Arbitrator noted that under Article 24, Section 15.B of the parties' agreement, an employee requesting sick leave is required to notify his or her supervisor as soon as possible, but no later than two hours after the beginning of the tour of duty on which the absence will occur. [n2]  The Arbitrator found that in this case the grievant had complied with the literal language of this provision. However, in the Arbitrator's view, such an interpretation does not account for the additional requirement that an employee requesting sick leave "notify [his or her] immediate supervisor as soon as possible." Id. at 17. The Arbitrator concluded that when read as a whole, Article 24, Section 15.B of the parties' agreement requires employees who are requesting sick leave to do so as soon as possible. The Arbitrator, therefore, concluded that the grievant "violate[d] the intent of [Article 24, Section 15.B] when she submitted her sick leave request." Id. at 18. [n3] 

      Finally, the Arbitrator addressed the Union's claim that the conduct of the grievant's supervisor caused the Agency's Leave Bank Board to improperly reject her request. The Arbitrator found that there is no language in the parties' agreement that "requir[es] a supervisor who has declined a request for sick leave to sign such a request before it is forwarded to the Leave Bank Board." Id. at 18. Consistent with this finding, the Arbitrator determined that "it was the prerogative of the [g]rievant's supervisor to sign or not to sign the sick leave request." Id. at 19.

      The Arbitrator also determined that the Leave Bank Board was not bound to consider a request that was not signed by the Agency. The Arbitrator noted that Article 24, Section 16 of the parties' agreement provides, "[s]ubject to applicable law, rule and/or regulation, and management's approval, advance[d] sick leave may be granted to an employee." Id. In the Arbitrator's view, the language of this provision "is clear and unambiguous in providing that management's approval is required before an employee's request for advance[d] sick leave can be granted." Id. The Arbitrator, therefore, found no merit to the Union's claim that the language of Article 24, Section 16, when read in conjunction with applicable regulations, contractually obligated the Agency to approve the grievant's request for advanced sick leave.

III.     Positions of the Parties

A.     Union's Exception

      The Union excepts to the Arbitrator's award on the ground that it is contrary to law. More specifically, the Union contends that the award is contrary to 5 U.S.C. § 6364(b)(1) which provides that the Leave Bank Board "shall review and approve applications to the leave bank under section 6367." Exception at 2. According to the Union, pursuant to this provision, "the law is binding on the Board to consider an application for leave[,]" and it "expressly confers upon the Leave Bank Board [the] power to review and approve employee applications to become leave recipients." Id. at 2-3. The Union also asserts that pursuant to 5 C.F.R. § 630.1007, the Leave Bank Board is required to provide timely written notification of the action taken on an application and, if the application is not approved, the reasons for disapproval.

      The Union submits that in this case, the grievant's application was supported by a doctor's certification and met the criteria for receipt of leave from the leave bank program. Nevertheless, the Union maintains that the Leave Bank Board failed to properly review and approve the grievant's application as required by law and regulation. The Union asserts that, as a result, the grievant failed to receive the income protection to which she was entitled as a member of the leave bank program. [ v57 p44 ]

B.     Agency's Opposition

      Contrary to the Union, the Agency contends that it did review the grievant's application for leave from the leave bank program. However, the Agency asserts that because the grievant's supervisor had not approved the underlying leave, the application was incomplete and "the Leave Bank Board had no basis for approving or disapproving the [grievant's] request." Opposition at 1.

      In addition, the Agency asserts that the action of the Leave Bank Board was consistent with law and regulation. The Agency points out that under 5 U.S.C. § 6367(a)(2)(D), an application for leave from the leave bank program is required to include "any other information which such Board may reasonably require." Id. at 4. According to the Agency, this language provides agencies with the discretion to determine whether any information will be required beyond that specified in the statute.

      The Agency also asserts that under 5 C.F.R. § 630.1007(a), agency leave bank boards are required to review applications "under procedures established by the agency." Id. at 5 (emphasis in original). Consistent with this regulation, the Agency explains that it has developed a "Leave Bank Handbook" which covers leave bank procedures. Id. The Agency further explains that this handbook specifically provides that "donated leave is subject to the same approval and use procedures as regular leave." Id. As supervisors have the authority to grant or deny any sick leave, the Agency maintains that its "procedures clearly contemplate . . . supervisory discretion in reviewing leave bank requests." Id.

      Finally, the Agency points out that the application form developed for requesting leave from the leave bank program includes a line for the supervisor's signature. According to the Agency, this demonstrates the Agency's "policy that supervisors must approve leave before leave bank applications can be reviewed." Id. In these circumstances, the Agency argues that "it acted entirely within statutory, regulatory and policy requirements governing leave banks in applying its procedural requirements" to the grievant's application. Id. at 6.

IV.     Analysis and Conclusion

A.     Standard of Review

      The Authority reviews questions of law raised by an award and the Union's exceptions de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). In applying a standard of de novo review, the Authority assesses whether the Arbitrator's legal conclusions are consistent with the underlying factual findings. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the Arbitrator's underlying factual findings. See id.

B.     The Award is Not Contrary to Law

      In this case, the Union contends that the award is contrary to the Voluntary Leave Bank Program. In particular, the Union maintains that under 5 U.S.C. § 6364(b)(1), the Leave Bank Board is required to review and approve applications to the leave bank under § 6367. The Union further maintains that pursuant to 5 C.F.R. § 630.1007, the Leave Bank Board is required to provide timely written notification of the action taken on an application and, if the application is not approved, the reasons for disapproval. According to the Union, the Leave Bank Board failed to properly review the grievant's application because the grievant's supervisor refused to approve it. The Union, therefore, claims that the award is contrary to law and regulation.

      5 U.S.C. § 6364 is the statute that authorizes agencies to establish Leave Bank Boards. [n4]  Among other things, § 6364(b) provides that boards shall "review and approve applications to the leave bank under section 6367 [and] monitor each case of a leave recipient[.]" Section 6367(a) specifies the type of information to be submitted in an application, including "the reasons why leave is needed, including a brief description of the nature, severity, anticipated duration, and, if it is a recurring one, the approximate frequency of the medical emergency involved." 5 U.S.C. § 6367(a)(2)(B). In addition, boards may require "certification from 1 or more physicians, or other appropriate experts," and "any other information which such Board may reasonably require." 5 U.S.C. § 6367(a)(2)(C) and (D).

      The plain language of these statutory provisions shows that in enacting the Voluntary Leave Bank Program, Congress clearly authorized agency leave bank [ v57 p45 ] boards to require additional information from applicants not specifically required by statute. In addition, § 630.1007(a) of the implementing regulations explicitly provides agencies with the authority to establish procedures for the review of an employee's application to become a leave recipient. [n5] 

      The Agency's policies and procedures for implementing the leave bank program are set forth in its "Leave Bank Handbook." See Opposition, Exhibit 3. As relevant here, the "Leave Bank Handbook" states that "[g]enerally, donated leave is subject to the same approval and use procedures as regular leave." Opposition at 5 (citing Exhibit 3 at 7). The Agency's policies and procedures governing regular leave are, in turn, set forth in the "EPA Leave Handbook." See Opposition, Exhibit 4. As noted by the Agency, this handbook states that "supervisors have the discretion to decide when and in what amount annual leave may be taken." Opposition, Exhibit 4 at 1. It further states that "[s]upervisors have the authority to grant or deny any sick leave." Id. at 3.

      From the foregoing, it is apparent that law, Government-wide regulations and Agency policies and procedures provide supervisors with discretion to either approve or disapprove leave. Such policies and procedures also require supervisors to indicate whether the sick leave requested on a leave bank application has been approved. Viewed in the context of applicable statutory and regulatory provisions, the requirement that such information be provided to the Leave Bank Board is not unreasonable and, therefore, is consistent with § 6367(a)(2)(D). The Arbitrator's determination that the Agency's reliance on its various leave procedures was acceptable and did not violate the collective bargaining agreement is not contrary to law.

V.     Decision

      The Union's exception is denied.


APPENDIX

5 U.S.C. § 6364(b) provides:

Each such Board shall:
(1)     review and approve applications to the leave bank under section 6367;
(2)     monitor each case of a leave recipient;
(3)     monitor the amount of leave in the leave bank and the number of applications for use of leave from the bank; and
(4)     maintain an adequate amount of leave in the leave bank to the greatest extent practicable.

5 U.S.C. § 6367(a) provides:

An application to receive contributions of leave from a leave bank, whether submitted by or on behalf of an employee--
(1)     shall be submitted to the Leave Bank Board of the employing agency of the proposed leave recipient; and
(2)     shall include--
     (A)     the name, position title, and grade or pay level of the proposed leave recipient;
     (B)     the reasons why leave is needed, including a brief description of the nature, severity, anticipated duration, and, if it is a recurring one, the approximate frequency of the medical emergency involved;
     (C)     if such Board so requires, certification from 1 or more physicians, or other appropriate experts, with respect to any matter under subparagraph (B); and
     (D)     any other information which such Board may reasonably require.



Footnote # 1 for 57 FLRA No. 13

   Article 44, Section 3 of the parties' agreement provides:

Issues and charges raised before the arbitrator shall only be those raised at the last stage of the applicable grievance procedure. The arbitrator shall have no authority to alter in any way the terms and conditions of this Agreement, any supplemental agreement or any other condition of employment not properly before him/her.

Award at 14.


Footnote # 2 for 57 FLRA No. 13

   Article 24, Section 15.B of the parties' agreement provides:

Employees requesting sick leave, will notify their immediate supervisor as soon as possible but no later that two (2) hours after the beginning of their regularly scheduled tour of duty. When an employee's situation will require him/her to be absent longer than one (1) day, the employee will so indicate the expected return to duty date.

Award at 5, 17.


Footnote # 3 for 57 FLRA No. 13

   The Arbitrator also rejected the grievant's claim that she did not know her doctor was providing medical documentation for an extended absence from work. The Arbitrator found that this claim was "simply not credible." Award at 18.


Footnote # 4 for 57 FLRA No. 13

   The relevant statutory provisions are set forth in an Appendix to this decision.


Footnote # 5 for 57 FLRA No. 13

   5 C.F.R. § 630.1007(a) provides:

The leave bank board shall review an employee's application to become a leave recipient under procedures established by the agency for the purpose of determining whether the employee is a leave bank member who is or has been affected by a medical emergency.
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