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62 FLRA No. 40
United States Department of Labor and American Federation of Government Employees, Local 12 (Pacht, Arbitrator), 0-AR-4105 (September 13, 2007)
The Union challenged the supervisor's refusal to meet with a Union representative and accept hand-delivered documentation on the medical condition of an employee who was receiving a temporary reasonable accommodation that permitted her to work from home. After refusing to accept the delivery of the medical information, the supervisor notified the Union representative, and requested that any medical information submitted by the affected employee through the Union representative or any third party be accompanied by a valid signed waiver by the affected employee.
The Arbitrator concluded that the Agency violated § 7116(a)(1) of the Statute when the supervisor chose not to meet with the Union representative because the Union representative was acting in his official representative capacity and engaged in protected activity when he attempted to deliver the affected employee's medical certificate to the supervisor. The Arbitrator also concluded that the supervisor should have accepted the medical information, stating that the supervisor's belief that a waiver was needed to receive medical information was not credible, and pointing out that the Privacy Act prohibits Agencies from releasing, not receiving, confidential information. In addition, according to the Arbitrator, the Agency violated § 7116(a)(1) and (5) by refusing to consult with or receive medical information from any Union agent without a release from the affected employee.
The Authority found that the Arbitrator's conclusion that the Agency violated § 7116(a)(1) was not contrary to law. However, the Authority found that the § 7116(a)(5) portion of the award was deficient. In this regard, the Authority found no basis on which to conclude that the Agency's refusal to accept the disputed medical documentation violated any aspect of its bargaining and consultation obligations under § 7116(a)(5) of the Statute. Further, the Authority noted that whether the supervisor violated § 7116(a)(5) by refusing to meet with the Union representative was beyond the scope of award in this case.