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42:0712(48)CA - - VA Medical Center, Memphis, TN and NAGE Local R5-66 - - 1991 FLRAdec CA - - v42 p712

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The decision of the Authority follows:

42 FLRA No. 48










(Charging Party/Union)



September 30, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel and by the Union to the attached decision of the Administrative Law Judge. The Respondent filed separate responses to the General Counsel's and the Union's exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by changing its procedure for approving sick leave, a condition of employment, and implementing the change without notifying the Union and bargaining concerning the substance or impact of the change. The Judge found that the General Counsel had failed to establish a prima facie case, and recommended that the complaint be dismissed.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended order.

In order to establish a prima facie showing that an unfair labor practice has occurred, the General Counsel must present evidence that would establish the elements of the statutory violation alleged, if such evidence is presumed to be true and the evidence presented by the opposing party is disregarded. Action, 26 FLRA 299, 301 (1987). The evidence must be sufficient only to withstand a motion to dismiss. Letterkenny Army Depot, 35 FLRA 113, 119 (1990).

Section 7116(a)(5) of the Statute makes it an unfair labor practice for an agency to refuse to bargain in good faith with an exclusive representative of its employees. As a result, an agency must provide the exclusive representative with notice of proposed changes in conditions of employment affecting unit employees and an opportunity to bargain over those aspects of the changes that are negotiable. Even if the subject matter of the change is outside the duty to bargain, an agency must bargain about the impact and implementation of a change in conditions of employment that has more than a de minimis impact on unit employees. U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Hartford District Office, Hartford, Connecticut, 41 FLRA 1309, 1317 (1991).

Thus, to establish a prima facie case that an agency has refused to bargain in good faith in violation of section 7116(a)(5), the General Counsel must show that there was an established practice concerning a negotiable condition of employment and that the agency changed the practice without giving notice to the exclusive representative and affording it an opportunity to bargain. In the case of a change in a condition of employment that is nonnegotiable, the General Counsel must show that the agency made the change without giving the union the opportunity to bargain on the impact and implementation of the change.

The threshold question in this case is whether the Respondent changed its procedure for approving sick leave for previous absences by requiring medical evidence, in addition to that contained on the standard form 71 (SF-71), to support sick leave taken by employees whom the Respondent previously had found to have abused sick leave. The Judge found that the General Counsel had not established that the Respondent changed its procedure for approving sick leave in such circumstances. Therefore, the Respondent was under no obligation to notify the Union when the Respondent required such information, or to bargain with it concerning such demands.

Accepting the evidence presented by the General Counsel as true for the purpose of testing the sufficiency of the General Counsel's case, we agree with the Judge that the General Counsel failed to establish a prima facie case.

The General Counsel called three witnesses. Two of these witnesses were employees who testified that they were surprised to be asked for additional support for sick leave claims when they returned from leave. The record shows that the Respondent required these employees to submit additional evidence for approval of leave taken after December 1989 when both were on "medical certification," a status that results from continued sick leave abuse after a warning that a pattern of sick leave abuse has been observed. The General Counsel's third witness had been the local Union president since an unspecified date in 1987. Transcript at 61. He testified that prior to the fall of 1989, additional medical evidence had not been required to justify absences for sick leave.

Thus, at most, the General Counsel's evidence establishes that two employees, who were required to furnish additional medical evidence for the sick leave they had taken after December 1989, had not known of such a requirement in the past,(1) and that the current Union president did not know about such a policy. The General Counsel presented no evidence other than the subjective belief of these three witnesses regarding the actual policy that existed concerning sick leave documentation prior to December 1989. In particular, the record does not establish whether any other employees on medical certification had ever taken sick leave during their time in that status, or if they had, whether they were permitted to do so without providing additional evidence. As noted by the Judge, a demand for the additional information from employees under medical certification "may not be a change at all from past practice since there are no cited instances involving employees in that status for whom approval was sought for past leave usage." Judge's Decision at 11.

The Union argues that the parties have negotiated over the type of evidence that will be administratively acceptable to support a claim for sick leave and have agreed that such evidence will be an SF-71 completed by a doctor or a statement from the doctor. Accordingly, the Union contends, any change in the evidence required must be the product of negotiations. We disagree that Article 28, section 2 D of the parties' collective bargaining agreement establishes the type of documentation that may be required when management suspects that an employee is abusing sick leave.(2) Rather, the provision states only that the Activity may require a "medical certificate" in such circumstances, without defining what information the medical certificate shall include. The Union president testified that approval of sick leave for employees absent for a minimum of three days consisted of a doctor's statement providing evidence that the employee could not work, and that the statement could be in the form of a signed SF-71. Transcript at 62; General Counsel's Exhibit 4. However, the Union president did not testify as to the Respondent's requirements for sick leave documentation from employees who had been placed on medical certification. Therefore, we do not find that this testimony is definitive regarding the meaning of the term "medical certificate" contained in Article 28 section 2 of the negotiated agreement. 

In summary, the General Counsel has shown, at most, that two employees who previously had been cited for sick leave abuse were required to present additional medical evidence to justify their requests for sick leave taken after December 1989. We agree with the Judge's conclusion that the General Counsel did not establish that this was a newly imposed requirement or a change in a condition of employment.

II. Order

The complaint is dismissed.

(If blank, the decision does not have footnotes.)

1. This case does not involve the issue of whether in fact the Respondent gave appropriate notice to the individual employees who testified that additional medical evidence was required to support their leave requests. The question here is whether the General Counsel has established that the Respondent changed an established past practice by requiring such evidence.

2. Article 28, section 2 D of the parties' collective bargaining agreement provides, in pertinent part:

D. 1) Generally, SF 71 (Application for Leave) and a medical certificate or equivalent should not be required for a sick leave period of 3 consecutive work days or less. However, when a supervisor believes that an employee is abusing the entitlement to sick leave (e.g., excessive use of sick leave or a pattern of sick leave usage which, in either case, is unsubstantiated), a medical certificate may be required for any period of absence. . . .