United States, Department of Justice, Federal Bureau of Prisons, United States Penitentiary, Marion, Illinois (Agency) and American Federation of Government Employees, Council of Prison Locals, Local 2343 (Union)

[ v59 p811 ]

59 FLRA No. 147

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
UNITED STATES PENITENTIARY
MARION, ILLINOIS
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
COUNCIL OF PRISON LOCALS
LOCAL 2343
(Union)

0-AR-3730

_____

DECISION

April 8, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Geoffrey L. Pratte filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      After finding that the Agency improperly required the grievant to obtain medical documentation for a 2-day absence, the Arbitrator ordered the Agency to pay the grievant's co-pay and mileage expenses for his doctor's visit. For the reasons discussed below, we set aside the award.

II.     Background and Arbitrator's Award

      The grievant's supervisors instructed the grievant to obtain medical documentation to support a doctor's statement over the telephone that the grievant would be unable to work for two days. The grievant's doctor told the grievant that he would have to come in for an appointment in order to obtain a medical certification form. After seeing the doctor, the grievant received a bill from the doctor for $75.00. The portion of the bill actually paid by the grievant was a $15.00 co-pay.

      After returning to work, the grievant asked the Agency to pay his doctor's bill. The Agency refused to pay. The grievant filed a grievance asking, among other relief, that the Agency pay his doctor bill and mileage. In its response to the grievance, the Agency admitted that it had violated the parties' agreement by requiring the grievant to obtain a medical certification form, but stated that it was not authorized to reimburse an employee for medical bills.

      The matter was submitted to arbitration. The parties did not stipulate to an issue and the Arbitrator framed it as follows:

Did the [Agency] violate the Master Agreement by requiring the Grievant to supply medical certification for two days of sick leave, and if it did violate the Master Agreement, was this violation excused by application of [the] Federal Regulations? If the Master Agreement was violated, and the violation not excused by Federal Regulation, what should [the] remedy be?

Award at 4-5.

      The Arbitrator first considered the effect of 5 C.F.R. § 630.403. [n2]  The Arbitrator found that the regulation "came into existence" after the effective date of the parties' agreement and, as such, was not applicable. Id. at 16. The Arbitrator further stated that even if 5 C.F.R. § 630.403 were applicable, it was applied improperly because the Agency abused its discretion in determining that medical certification was necessary on this occasion.

      The Arbitrator subsequently found that the Agency violated Article 20(b) of the parties' agreement by requiring the grievant to provide a medical certification. [n3]  The Arbitrator then acknowledged that there was no specific statute, regulation or rule permitting the Agency to pay the grievant's actual medical bill. Nonetheless, the Arbitrator ordered the Agency to reimburse the grievant $15.00 for his actual expenses for the doctor [ v59 p812 ] visit to obtain the medical certification, $10.95 for his mileage, and interest in accordance with the Back Pay Act. The Arbitrator denied all other relief requested by the Union.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency argues that the award is based on a nonfact because the Arbitrator erred in finding that 5 C.F.R. § 630.403 does not predate the parties' agreement. In support, the Agency asserts that the pertinent language in 5 C.F.R. § 630.403 was in existence both in the 1997 and 1986 editions of the C.F.R. The Agency contends that but for this error, the Arbitrator would have "decided the case differently[.]" Exceptions at 12.

      The Agency also contends that the Arbitrator's finding that the Agency violated 5 C.F.R. § 630.403 is contrary to law. In this regard, the Union argues that under § 630.403, agencies are allowed to ask for medical documentation "whenever they determine it is necessary[.]" Id. at 9. The Agency contends that nothing in this regulation requires an agency to determine that medical documentation is "truly necessary" in order to request it for an absence of less than 3 days. Id. (quoting Award at 17). The Agency also argues that the Arbitrator determined whether it was appropriate for the Agency to request the documentation in the first place, rather than whether the documentation provided by the grievant was "administratively acceptable[,]" as required by the regulation. Id. (quoting 5 C.F.R. § 630.403(a)).

      The Agency further argues that the Arbitrator exceeded his authority by disregarding specific limitations on his authority when he awarded monetary damages to the grievant without specific statutory authority to do so. In this connection, the Agency argues that when the United States is a party to an arbitration, "a waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text and will not be implied." Id. at 5. The Agency claims that in the present case the Arbitrator failed to point to any federal law which allows an arbitrator to order that an agency reimburse an employee's co-pay and mileage. Further, the Agency contends that the Arbitrator's reference to the Back Pay Act is misplaced. In this regard, the Agency argues that the remedy ordered by the Arbitrator does not satisfy the criteria set forth for monetary relief in the Back Pay Act and as interpreted and applied by the Authority. Id. at 7-8.

B.     Union's Opposition

      The Union contends that the Agency's nonfact exception is "immaterial." Opposition at 2. The Union also asserts that the Arbitrator acted properly in finding that the Agency abused its discretion with regard to 5 C.F.R. § 630.403. In this connection, the Union argues that the Agency's exception constitutes a challenge to one of the Arbitrator's factual findings and disagreement with the Arbitrator's interpretation of the parties' agreement. The Union further argues that the Arbitrator did not exceed his authority because the grievant's expenses were incurred on official business.

IV.     Analysis and Conclusions

      The Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making such a determination, the Authority defers to the arbitrator's underlying factual findings. See id.

A.     5 C.F.R. § 630.403.

      The Agency raises two exceptions with regard to 5 C.F.R. § 630.403.

      First, the Agency asserts that the Arbitrator erred when he found that 5 C.F.R. § 630.403 did not predate the parties' agreement. Since the Arbitrator relied on this finding in determining that the regulation was not applicable, we construe the Agency's nonfact exception as part of the Agency's claim that the award is contrary to 5 C.F.R. § 630.403.

      Second, the Agency challenges the Arbitrator's finding that even if 5 C.F.R. § 630.403 had been in effect, it was applied improperly.

      As to the Agency's first claim, we find that the Arbitrator erred in finding that 5 C.F.R. § 630.403 did not predate the parties' agreement. In this regard, the effective date of the parties' agreement is March 9, 1998. See Award at 16. The Agency correctly asserts that the pertinent language in § 630.403 was in effect in [ v59 p813 ] both the 1997 and 1986 editions of the C.F.R. See Exceptions, Attachment E (5 C.F.R. § 630.403 (1997)); Exceptions, Attachment F (5 C.F.R. § 630.403 (1986)). See also 60 Fed. Reg. 3032 (Jan. 12, 1995); 59 Fed. Reg. 62271 (Dec. 2, 1994). Accordingly, the agreement was not in effect before 5 C.F.R. § 630.403 was prescribed. Consequently, the regulation was in effect and is applicable in this case.

      As to the Agency's second claim, we find that the award is not contrary to 5 C.F.R. § 630.403. As relevant here, § 630.403 permits an agency to require a medical certificate for absences of less than three days "when determined necessary[.]" 5 C.F.R. § 630.403. [n4]  The Agency asserts that agencies are allowed to ask for documentation whenever they deem it necessary to substantiate a leave request and that, in this case, the Agency "acted well within its rights" in requiring the grievant to furnish medical documentation. Exceptions at 10.

      In our view, the issue raised by the Agency's exception is whether, under the regulation, the Agency had a right to require the grievant to submit medical certification for an absence of less than three days. In this regard, the Agency essentially argues that it has an unreviewable right to determine that medical documentation is necessary. We do not agree. Unlike the language which places no limit on an agency's right to require medical documentation for an absence in excess of three days, the regulation plainly states that an agency may require medical documentation for a lesser period only "when determined necessary[.]" 5 C.F.R. § 630.403.

      Although the Arbitrator found that the regulation was not applicable, a determination that was in error for the reason stated above, the Arbitrator nonetheless made findings with respect to the application of the regulation. In particular, the Arbitrator found that the Agency had the right, through its supervisors, to make determinations of necessity for medical documentation. However, the Arbitrator added that supervisors must determine whether documentation is necessary in a reasonable manner. Applying the regulation to the facts of this case, the Arbitrator determined that the Agency had abused its discretion. The Arbitrator expressly found that the supervisors admitted that they had not previously required an employee to submit medical documentation "for such a short period [of time,]" that the grievant had explained to the supervisor that he had been treated previously by this physician for the same condition, and that the grievant had not been identified as an employee suspected of abusing sick leave. Award at 17. In effect, the Arbitrator found that the Agency had not properly determined that medical documentation was necessary.

      In our view, the Agency has not established that the Arbitrator's conclusion that the regulation was applied improperly here is contrary to law. Accordingly, we deny the exception. [n5] 

B.     Remedy

      The United States is immune from liability under the doctrine of sovereign immunity. See Lane v. Pena, 518 U.S. 187 (1996). Sovereign immunity can be waived by statute, but a waiver will be found only if "unequivocally expressed in statutory text . . . and will not be implied[.]" Id. at 192. Thus, a Federal agency will be subject to a monetary claim only if the statute on which the claim is based unambiguously establishes that the Government has waived its sovereign immunity to permit suit, and that the scope of that waiver extends to an award of money damages. Id. See also INS, Los Angeles Dist., Los Angeles, Cal., 52 FLRA 103 (1996) (INS, Los Angeles). As such, an award by an arbitrator that an agency provide monetary reimbursement for a grievant's medical co-pay and mileage must be supported by statutory authority to impose such a remedy. In the present case, for the reasons discussed below, neither the Back Pay Act nor the Statute provides the requisite statutory authority.

      A government employee found to have been affected by an improper or unwarranted personnel action resulting in the withdrawal or reduction of pay, allowances or differentials may be made whole under the authority of the Back Pay Act, 5 U.S.C. § 5596(b)(1)(a). Here, there is no contention that the Arbitrator's remedy -- the reimbursement of the grievant's co-pay and mileage -- is based on a loss of pay, allowances, or differentials under the Back Pay Act. In [ v59 p814 ] this regard, we note that in denying the grievant's request for overtime pay, the Arbitrator found that "such an award would not be appropriate; the Grievant was not working at the time, and, therefore, the Arbitrator cannot find that `but for' the Agency's violation, he would have received overtime." Award at 19. The grievant requested, and was granted, sick leave. He did not suffer a loss of pay, allowances, or differentials. Accordingly, the grievant is not entitled to reimbursement under the Back Pay Act.

      The Authority has previously found that the remedial provisions of the Statute do not meet the strict test for waiver of sovereign immunity. Accordingly, the Authority will not award money damages that do not constitute pay, allowances, or differentials, without an express and unambiguous grant of authority to do so. See INS, Los Angeles, 52 FLRA at 106, adopting Dep't of the Army v. FLRA, 56 F.3d 273 (D.C. Cir. 1995). Here, neither the Union nor the Arbitrator pointed to any statute that would support a waiver of sovereign immunity in the circumstances of this case. In this regard, the Authority has explicitly held that an award of a grievant's personal medical expenses was precluded by sovereign immunity. See United States Dep't of Transp., FAA, 52 FLRA 46 (1996) (FAA). [n6]  Accordingly, we set aside the Arbitrator's award of money damages as contrary to law.

V.     Decision

      The award is set aside. [n7] 


Opinion of Member Carol Waller Pope, dissenting in part:

      I agree with the majority that the award is not inconsistent with 5 C.F.R. § 630.403 and that sovereign immunity precludes the remedy awarded by the Arbitrator. I write separately because, unlike the majority, I would remand the award for consideration of an alternative remedy.

      As in previous cases, the majority provides no reasoned explanation for its decision not to remand the award despite the fact that the contract violation remains intact. See, e.g., United States Dep't of Agric., Grain Inspection, Packers & Stockyards Admin., Fed. Grain Inspection Serv., New Orleans, La., 59 FLRA 411 (2003) (Member Pope dissenting); SSA, Balt., Md., 59 FLRA 312 (2003) (Member Pope dissenting); United States DOJ, Fed. Bureau of Prisons, Fed. Corr. Inst., Oakdale, La., 59 FLRA 277 (2003) (Member Pope dissenting); SSA, 59 FLRA 257 (2003) (Member Pope dissenting); United States Dep't of Veterans Affairs, Cleveland Reg'l Office, Cleveland, Ohio, 59 FLRA 248, 255 (2003) (Veterans Affairs) (Member Pope dissenting). Instead, the majority merely states that it finds "no facts or circumstances warranting a remand." Majority Opinion at 10 n.7.

      The majority's failure to divulge "WHAT facts and circumstances it is looking for and WHY it finds no such facts and circumstances in this case" renders arbitrary and capricious its decision not to remand this matter. Veterans Affairs, 59 FLRA at 255 (Dissenting Opinion of Member Pope). The majority's decision also confirms its predilection to punish the Union/grievant "for what is, after all, the arbitrator's failure." Grand Rapids Die Casting Corp. v. Local Union No. 159, United Auto., Aerospace & Agric. Implement Workers of Am., UAW, 684 F.2d 413, 416 (6th Cir. 1982). The determination to continue down this ill-advised path confirms the majority's intention to deprive employees of remedies and permit agencies to evade all liabilities for their violations.

      As the majority sets aside the (sole) remedy but leaves intact the Arbitrator's finding of a contractual violation, the Authority should remand the matter to the parties for discussion of an alternative remedy and, failing agreement, for the Arbitrator to develop such remedy. Accordingly, for the reasons set forth in my separate opinion in Veterans Affairs, I dissent.



Footnote # 1 for 59 FLRA No. 147 - Authority's Decision

   Member Pope's opinion, dissenting in part, is set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 147 - Authority's Decision

   5 C.F.R. § 630.403 Supporting evidence, provides in pertinent part:

     (a) An agency may grant sick leave only when supported by administratively acceptable evidence. 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 administratively acceptable evidence. For an absence in excess of 3 workdays, or for a lesser period when determined necessary, 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 # 3 for 59 FLRA No. 147 - Authority's Decision

   Article 20(b) of the parties' agreement provides in pertinent part:

Employees will not be required to furnish a medical slip to substantiate sick leave for three (3) days or less. However, in cases of questionable sick leave usage of any length, the employee will be given advance notice, in writing, that all future absences due to sickness must be substantiated by a medical certificate.

Award at 3.


Footnote # 4 for 59 FLRA No. 147 - Authority's Decision

   Section 630.403 provides that an agency may grant a request for sick leave only when such a request is supported by "administratively acceptable" evidence. In this regard, the Authority has stated that an agency's discretion as to what documentation constitutes "administratively acceptable" evidence supporting a request for sick leave is limited only by the requirement of reasonableness. United States Dep't of the Air Force, Robins Air Force Base, Warner Robins, Ga., 41 FLRA 635, 638 (1991) (Warner Robins) (citing Miller v. Bond, 641 F.2d 997, 1003 (D.C. Cir. 1981)). See also AFGE, Local 2408, 52 FLRA 992, 996 n.6 (1997).

      The regulation also provides that "[f]or an absence in excess of 3 workdays, or for a lesser period when determined necessary, the agency may also require a medical certificate or other administratively acceptable evidence as to the reason for an absence . . . ." 5 C.F.R. § 630.403.


Footnote # 5 for 59 FLRA No. 147 - Authority's Decision

   We express no view as to the finding of a contractual violation and no exception has been raised in that regard.


Footnote # 6 for 59 FLRA No. 147 - Authority's Decision

   In Soc. Sec. Admin., Wilkes-Barre Data Operations Ctr., 28 FLRA 198 (1987), the Authority upheld an arbitrator's award requiring an agency to reimburse a grievant for the $56 she incurred in obtaining a medical certificate. There was no exception that such a monetary award was contrary to the Back Pay Act or that the remedy was barred by sovereign immunity. We will no longer follow this precedent, as is clear by this case and FAA, 52 FLRA 46, because it fails to follow the doctrine of sovereign immunity.


Footnote # 7 for 59 FLRA No. 147 - Authority's Decision

   We note that the Arbitrator considered and denied all of the additional remedies requested by the Union, including attorney fees, overtime, postings and union representative attendance at supervisor training. See Award 18-20. The Union did not except to the Arbitrator's denial of these remedies.

      In United States Dep't of Veterans Affairs, Cleveland Reg'l Office, Cleveland, Ohio, 59 FLRA 248 (2003) (Member Pope dissenting), we expressed the view that when the Authority finds an arbitrator's remedy deficient, it is generally appropriate to leave any further action concerning such an award in the hands of the parties. We ruled that the "