[ v40 p947 ]
The decision of the Authority follows:
40 FLRA No. 78
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Hugh R. Catherwood 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 Rules and Regulations. The Agency did not file an opposition to the Union's exception.
The Arbitrator denied a grievance over a counseling letter received by the grievant regarding his use of sick leave. For the following reasons, we find that the Union has failed to establish that the award is deficient. We will, therefore, deny the exception.
II. Background and Arbitrator's Award
On October 23, 1990, the grievant received a letter entitled "Sick Leave Counseling" from his supervisor. The letter stated that a review of the grievant's sick leave usage for the period January 1, 1990, to that date showed that he had earned 84 hours of sick leave and had used 160 hours. Summarizing the grievant's sick leave usage, the letter noted that the grievant's record showed 27 absences on sick leave, 7 of which were supported by written statements from physicians.
A grievance was filed over the counseling. The grievance was not resolved and was submitted to arbitration.
As a preliminary matter, the Arbitrator determined that the grievance was procedurally arbitrable. The parties agreed that the following issue was before the Arbitrator: "Was the counselling of the [g]rievant, . . . for just cause and in accordance with the Master Labor Agreement and other applicable laws, rules, and regulations?" Award at 1.
On the merits, the Arbitrator concluded that he could "find no reason to fault [the grievant's supervisor] . . . for imposing a non-disciplinary penalty." Id. at 2. The Arbitrator noted the testimony of the grievant's supervisor that, while all the grievant's absences had been authorized, the supervisor believed that the grievant had not actually been ill on some occasions. In this regard, the supervisor testified that the "so-called doctor certificates . . . had in fact been merely forms signed by a nurse and gave no indication of the nature or degree of the claimed illness." Id. The Arbitrator also noted the supervisor's testimony that the grievant's absences had caused her to assign his work to another employee when that person was needed at his regular post, that the grievant had often taken sick leave on Mondays and Fridays, and that when the grievant's sick leave was exhausted, he had frequently taken annual leave or leave without pay.
The Arbitrator concluded that the grievant's absences fit the criterion of Section 24.03(a)(5) of the parties' collective bargaining agreement regarding identification and correction of sick leave abuse.(*) That subsection provides that one indication of sick leave abuse is "[i]ntermittent sick leave use of short duration with vague excuses." The Arbitrator acknowledged that the "fact that the [g]rievant took leave without pay on some occasions certainly indicates that at those times he was genuinely ill," but, the Arbitrator noted, "from the point of view of management, an employee who is so often absent, requiring a substitute to be taken off work where he is badly needed, is simply an unfair burden." Award at 2. Accordingly, the Arbitrator denied the grievance.
III. The Union's Exception
The Union contends that the Arbitrator's award is contrary to law, that the Arbitrator exceeded his authority and that "the tolerable bounds of reasonableness were breached by the Arbitrator in the rendering of the award." Exception at 1.
The Union states that the counseling letter refers to the grievant's alleged use of sick leave during periods of heavy workload and in connection with weekends and holidays. The Union argues that these allegations meet the "requirements" set forth in section 24.03(a)(3) and (4) of the collective bargaining agreement and not the criterion set forth in section 24.03(a)(5) relied upon by the Arbitrator. Accordingly, the Union argues that the Arbitrator exceeded his authority under law and the parties' collective bargaining agreement by determining that the Agency had just cause to counsel the grievant because his sick leave use met the criterion set forth in Section 24.03(a)(5). The Union notes that Section 7.06(a) of the parties' collective bargaining agreement provides that an "arbitrator's authority is limited to deciding only the issue or issues considered in the formal grievance." The Union argues that the only issue properly before the Arbitrator was whether the grievant's conduct constituted leave abuse under section 24.03(a)(3) and (4) because those were the only indications of sick leave abuse specifically described in the counseling letter.
IV. Analysis and Conclusions
We conclude that the Union has not established that the Arbitrator's award is deficient. The Union asserts that the award is "contrary to and not within the spirit, intent and general character of the law." Exception at 1. However, the Union cites no law with which the award allegedly conflicts and none is apparent to us. Accordingly, we reject the Union's assertion. See, for example, U.S. Department of Transportation, Federal Aviation Administration, Springfield, Illinois and National Air Traffic Controllers Association, 39 FLRA 1036, 1041 (1991).
The Union also asserts that the Arbitrator exceeded his authority. An arbitrator exceeds his or her authority when he or she issues an affirmative order that goes beyond the scope of the matter submitted to arbitration. See, for example, General Services Administration, Region VII, Fort Worth, Texas and American Federation of Government Employees, Council 236, 35 FLRA 1259, 1265-66 (1990).
In this case, the parties stipulated that the Arbitrator was to decide whether the counseling of the grievant was for just cause in accordance with the parties' collective bargaining agreement; no specific section of the agreement was cited. The underlying formal grievance in this matter generally alleged that the counseling letter violated the parties' collective bargaining agreement. We conclude that the award is directly responsive to the issue as the parties framed it. In this regard, the Arbitrator considered the background and entire content of the counseling letter, including the letter's references to the grievant's absences during periods of heavy workload and in connection with weekends. The counseling letter did not reference any specific subsections of the collective bargaining agreement, but rather noted the grievant's pattern of absences, including their duration and frequent lack of a doctor's certificate justifying the absence. Consequently, we find that the Union has not demonstrated that the Arbitrator's award relates to matters which were not submitted to arbitration or part of the formal grievance. Accordingly, the Union's assertion that the Arbitrator exceeded his authority provides no basis for finding the award deficient.
The Union's assertion that the award is unreasonable constitutes nothing more than disagreement with the findings and conclusions of the Arbitrator and provides no basis for finding the award deficient. See Panama Canal Commission and Panama Area Metals Trades Council, 34 FLRA 237 (1990).
We will, therefore, deny the Union's exception.
The Union's exception is denied.
SECTION 24.03: IDENTIFICATION AND CORRECTION OF SICK LEAVE ABUSE
An employee will not be required to furnish a doctor's certificate to substantiate a request for three days or less sick leave, unless there is a documented reason to believe the employee is abusing sick leave as set forth below.
a. There are certain sick leave trends which, when appearing on a continual basis, could indicate sick leave abuse.
(1) Absence after paydays.
(2) Sick leave before or after holidays.
(3) Monday-Friday sick leave.
(4) Absences during heavy workloads or undesirable duties.
(5) Intermittent sick leave use of short duration with vague excuses.
b. When a supervisor suspects that an employee is abusing sick leave, he/she should look further into the individual's past leave records, using available sick leave data to provide more information. The supervisor will also explore the causes of the employee's chronic absenteeism and assist in resolving the conflict, provide additional personal reminders of the importance of careful use of sick leave, etc.
c. Once a supervisor has identified sick leave abuse, the supervisor will counsel the employee with respect to the use of sick leave, and a record of the counseling will be recorded on the 971 file. Bargaining unit employees will not be required to provide doctor's certificates for sick leave requests solely on the basis of a mechanized leave usage report that indicates the employee's use of sick leave is abnormal.
d. If the sick leave record subsequent to the counseling does not show elimination of sick leave abuse, the employee will be given written notification requiring the employee to provide doctor's certificates for all absences for which sick leave is requested. This notice should contain justification as to why the employee was given the additional requirement, such as stating the number of hours of sick leave used in a specific period, his sick leave pattern and balance, etc. The requirement to furnish doctor's certificates, once imposed, will be reviewed at least every six months to determine if it should be continued. At the time of the review, the employee will be counseled and advised in writing if the requirement is to be continued or cancelled. The supervisor should take care to be firm, fair, and consistent not only in resolving sick leave abuse but in all aspects of sick leave administration.
(If blank, the decision does not have footnotes.)
*/ Section 24.03 is set forth in its entirety in the Appendix to this decision.