U.S. Federal Labor Relations Authority

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The decision of the Authority follows:

28 FLRA NO. 32






Case No. O-AR-1318


I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Richard R. Kasher filed by the Activity under section 7122 (a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition.

II. Background and Arbitrator's Award

The facts as found by the Arbitrator are as follows. The grievant had requested and been denied annual leave for November 29, 1985, the day after Thanksgiving. On the morning of the 29th, the grievant telephoned her work unit and requested sick leave for the day. In response to the grievant's call, a supervisor told her that she would be required to provide a doctor's certificate confirming her condition or that she would have to report to work. Upon being told this, the grievant attempted to schedule a medical appointment with several doctors, none of whom were available. The grievant informed the supervisor, who then suggested that the grievant visit a hospital emergency room. The grievant did so, and obtained medical documentation verifying her condition. The visit to the emergency room cost the grievant $56. The Union then filed a grievance. The Arbitrator stated that the question before him was whether the Activity violated the collective bargaining agreement and/or past practice when it required the grievant to provide medical documentation for her sick leave request for November 29, and if so what should the remedy be.

The Arbitrator considered Sections 4B and 4C of Article 31 of the parties' agreement, which state:

B. Employees normally shall not be required to furnish a medical certificate to substantiate a request for approval of sick leave unless sick leave exceeds three consecutive workdays. In cases where the nature of the illness is such that an employee did not need to see a medical practitioner, a medical certificate may not be required if the employee provides an acceptable explanation.

C. In individual cases, if there is evidence that an employee's leave pattern may indicate that an abuse of sick leave exists, the employee shall first be advised by an interview, which shall be recorded in the SF-7B files, of the reasons a medical certificate may be required for each subsequent absence of sick leave.

If the employee's leave pattern continues, the employee will be advised in writing as to whether an acceptable medical certificate may be required for each subsequent absence for which sick leave is requested.

The sick leave usage of all employees under sick leave restriction will be reviewed at least every six (6) months and a written decision to continue or lift the restrictions made; if the review shows significant improvement, the supervisor will lift the restriction.

The Arbitrator also noted that Section 2 of Article 1 of the agreement provides:

Section 2 - Past Practices It is agreed and understood that any prior benefits and practices and understandings which were in effect on the effective date of this agreement at any level (national, council, regional and local), and which are not specifically covered by this agreement and do not detract from it shall not be changed except in accordance with 5 USC 71.  The Arbitrator interpreted the parties' agreement to mean that employees who are not on restricted sick leave (such as the grievant) will not be required to furnish medical certificates to substantiate requests for approval of sick leave, except when sick leave exceeds 3 consecutive workdays. The Arbitrator also determined that the Activity had a past practice under which employees, other than those employees on restricted sick leave, were not required to submit medical certificates for absences of 3 days or less, whether or not those days of sick leave occurred just prior to or immediately following a holiday.

The Arbitrator indicated that the decision by the Activity's supervisors that all sick leave requests for the day following Thanksgiving 1985 would have to be supported by medical verification violated the parties' collective bargaining agreement and past practice. The Arbitrator therefore sustained the grievance based on the provisions of the parties' collective bargaining agreement and the parties' past practice. As his award, he directed the Activity to reimburse the grievant for the $56 of expenses she incurred in obtaining the medical certificate.

III. Discussion

The Activity contends that the award is deficient because it is based on a nonfact and violates applicable law and regulation, including section 7106 (a) (2)(A) and (B) of the Statute. In support of its exceptions, the Activity asserts that (1) the grievant has not submitted a bill for the $56 and the award therefore has no basis in fact other than the employee's testimony that she incurred the expense; and (2) there is no provision in the parties' agreement for payment of the expense. The Activity requests that we give no weight to an exhibit enclosed with the Union's opposition because it was not introduced at the arbitration hearing. The exhibit was a copy of a bill for $56 in medical expenses and a copy of the grievant's personal check as proof of payment.

We conclude that the Activity has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule or regulation or that it is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. See, for example, U.S. Department of Labor and Local 12, American Federation of Government Employees, 24 FLRA No. 46 (1986) (even if the arbitrator's statement were concededly erroneous, it was not established that the alleged nonfact was the fact on which the award was based and that but for the arbitrator's misapprehension, the arbitrator would have reached a different result); U.S. Army Corps of Engineers, Kansas City District and National Federation of Federal Employees, Local 29, 22 FLRA No. 15 (1986) (interpretation and application of the collective bargaining agreement is a question solely for the arbitrator in that it is the arbitrator's construction of the agreement for which the parties have bargained). Accordingly, the Activity's exceptions are denied.

Issued, Washington, D.C., July 27, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member