[ v57 p489 ]
57 FLRA No. 90
U.S. DEPARTMENT OF VETERANS AFFAIRS
RALPH H. JOHNSON MEDICAL CENTER
CHARLESTON, SOUTH CAROLINA
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-136
September 26, 2001
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
Decision by Chairman Cabaniss for the Authority
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator James W. Robinson filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7101 et seq., (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator sustained a grievance over the denial of sick leave for the grievant. For the reasons that follow, we find that the Agency's exceptions fail to establish that the award is deficient under § 7122(a) of the Statute and we deny the exceptions.
II. Background and Arbitrator's Award
The grievant has been a food service worker for 26 years. Both parties agreed that she has not abused the sick leave program and had a balance of more than 2,000 hours of sick leave plus additional annual leave.
Since at least 1995, the food service has used a seniority bidding system to schedule annual leave. Formerly, two employees could have annual leave in a given week. However, beginning in 1998, because of staffing reductions, only one employee could take leave for a given week. The grievant has taken annual leave during the last two weeks of September since at least 1994. She bid for the week of September 17 during the 1999 [ v57 p490 ] bidding, but a more senior employee was awarded that week. A few months later, the grievant again sought to take leave for the week of September 17 and was denied. She grieved her inability to take leave the week of September 17 but the grievance was denied at the three steps of the grievance procedure. The Union did not appeal that grievance to arbitration.
The grievant was absent from work September 19 through September 25, 1999, the week for which she had formerly sought annual leave. She requested sick leave for those days and provided the Agency with a medical certificate stating that her absence was "'because of excessive stress related symptoms.'" Award at 3, quoting Joint Exhibit 7 (See Attachments to Agency's Exceptions). [n1] The Agency denied her request for sick leave pending receipt of detailed information from the grievant's physician(s). The grievant would not permit her physician to disclose detailed information. She filed a grievance when her days of absence were recorded officially as "absence without leave" (AWOL). The grievance was not resolved and was submitted to arbitration.
The parties stipulated the issue for arbitration:
Did the Agency properly deny sick leave to the [g]rievant. If not, what is the appropriate remedy?
Award at 3.
At the arbitration hearing, the Arbitrator determined that two questions needed to be resolved. The Arbitrator found that the threshold issue was whether the parties' agreement and/or various statutes and regulations permit the Agency to require the grievant to provide detailed medical justification for her absence. If so, the Arbitrator found the other question was whether the Agency possessed sufficient justification to require such documentation.
As to the threshold issue, the Arbitrator found that the parties' agreement and various regulations permit the Agency to accept the employee's self-certification or to require a medical certification or other documentation that is "'administratively acceptable.'" Award at 7. However, the Arbitrator found that the character of the documentation (what is administratively acceptable) is not defined. Absent a definition of "administratively acceptable," the Arbitrator examined whether the Agency's action was reasonable. The Arbitrator found that the Agency's suspicion regarding the request for sick leave was reasonable based on the circumstances of the employee requesting annual leave for the same period during the vacation time bidding. However, the Arbitrator found that the grievant complied with the request for medical certification. The Arbitrator concluded that the physician's diagnosis is consistent with an earlier statement from the grievant's psychiatrist, and that, given her sick leave history and the absence of any leave restriction, the grievant's production of the physician's certificate should have been sufficient. The Arbitrator sustained the grievance. [n2]
III. Positions of the Parties
A. The Agency
1. Contrary to Law and Regulation
In exception No. 16, the Agency contends that the award is contrary to the Statute. Moreover, in exceptions Nos. 5 and 6, the Agency contends that the award is contrary to 5 C.F.R. parts 339 and 630. The Agency asserts that the supervisor relied on these regulations in seeking the additional medical information from the grievant.
The Agency asserts that the parties' agreement states:
ARTICLE 18, SICK LEAVE, Section 5-a. Generally, SF-71 (Application of Leave) and a medical certificate of equivalent should not be required for a sick leave period of 3 consecutive work days or less.
Exceptions at 27, citing Article 18. According to the Agency, the agreement provides that a medical certificate is normally required for absences in excess of 3 days. The Agency argues that it justifiably requested additional medical information based on its suspicion regarding the grievant's absence. The Agency contends that the Arbitrator's finding that the grievant complied with the Agency's request for medical certificate is based on a nonfact. [ v57 p491 ]
3. Fair Hearing
The Agency contends that the Arbitrator failed to conduct a fair hearing in its first and second exception No. 7, and in exception Nos. 8, 9, 11, 12, 13, 14, and 15.The Agency's exceptions addressed: the Arbitrator's failure to consider overwhelming circumstantial evidence; the Arbitrator's error in considering the testimony of the grievant's neighbor; the Arbitrator's consideration of the grievant's leave record and failure to consider other points raised by the Agency; the Arbitrator's failure to consider evidence regarding the Agency's past practice; the Arbitrator's failure to properly assess the credibility of the grievant; the Arbitrator's failure to examine the character of witnesses; the Arbitrator's admission of one witness' testimony by telephone rather than in person testimony; the Arbitrator's failure to consider evidence presented; and the Arbitrator's failure to consider evidence and credibility regarding the Union's burden of proof.
We construe the Agency's contention that the Arbitrator's award does not provide a plausible interpretation of the agreement as an exception that the award fails to draw its essence from the parties' agreement. See exception No. 4, Exceptions at 28. The Agency argues that it was undisputed that a medical certificate was normally required for absences over 3 days.
5. Exceeded Authority
The Agency contends in its exceptions Nos. 3 and 10 that the Arbitrator exceeded his authority. In particular, the Agency argues that the Arbitrator exceeded his authority because he disregarded the specific requirements contained in the parties' agreement, i.e., a medical certificate is normally required for absences in excess of 3 days. The Agency also argues that the Arbitrator exceeded his authority because he erred in finding that the term "evidence administratively acceptable" was not defined. According to the Agency, that term was defined by case precedent, past practice and Government-wide regulations at 5 C.F.R. parts 339 and 630.
6. Public Policy
In its closing exception, No. 16, the Agency asserts that it acted reasonably and that the Union had failed its burden of proof to show otherwise. The Agency further asserts that it was a disservice to the Agency and taxpayers to find for the grievant and to condone the inefficiency of paying overtime for another employee to work in place of the grievant. The Agency contended that this inefficiency is in violation of public policy, public law (the Statute), and the parties' agreement.
B. The Union
1. Contrary to Law and Regulation
The Union contends that the award is consistent with law and regulation. Regarding 5 C.F.R. part 339, the Union asserts that that part deals with fitness for duty examinations and is not applicable here.
According to the Union, Article 18, Section 6 of the parties' agreement provides that self-certification may be allowed for any length of absence. The Union finds the Agency's exception unclear, because the Arbitrator upheld the Agency's right to ask for a doctor's certificate in this case, which the grievant provided. The Union asserts that the Agency may not dispute an interpretation of the agreement under this ground for exception because it is not properly a challenge to a fact.
3. Fair Hearing
The Union argues that the eight Agency exceptions that allege failure to conduct a fair hearing "are nothing more than a disagreement with the conclusions reached by the Arbitrator." Opposition at 5. According to the Union, the Agency "identifies no misconduct or bias on the part of the Arbitrator." Id.
The Union contends that the Agency provided no explanation for its contention that the Arbitrator's interpretation of the agreement is not plausible.
5. Exceeded Authority
The Union asserts that the Arbitrator did not make any findings contrary to the parties' agreement. The Union contends that the Arbitrator refused to let the Agency require medical evidence more detailed than that provided for under the agreement. The Union also asserts that the argument in exception No. 10 has been addressed elsewhere.
6. Public Policy
The Union did not specifically address the Agency's contention that the award violated public policy. [ v57 p492 ]
IV. Analysis and Conclusions
A. The Award Is Not Contrary to Law and Regulation
The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. See United States Customs Serv. v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In NTEU, Chapter 24, 50 FLRA 330, 332 (1995), the Authority stated that if the arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. 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 that assessment, the Authority defers to the arbitrator's underlying factual findings. See NTEU, Chapter 50, 54 FLRA 250, 253 (1998). [n3]
As to the contention that the award is contrary to the Statute, we note that the Agency does not rely on a specific section of the Statute nor does it explain in detail why the award is contrary to the Statute. The Authority has long held that an exception claiming a violation of law must contain a description of facts and circumstances to support its exception. A general assertion, absent more, is not sufficient to support a contention that an award is contrary to the Statute. See, e.g., Nat'l Border Patrol Council and Nat'l Immigration and Naturalization Serv. Council, 3 FLRA 401, 403 (1980).
We find that 5 C.F.R. part 339 concerns medical qualification determinations, or medical fitness for duty examinations. It does not pertain to granting sick leave as relevant here. Accordingly, in the absence of some showing of relevancy, the Agency's reliance on part 339 is misplaced.
5 C.F.R. § 630.403 addresses supporting evidence for sick leave usage:
(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).
In this case, the grievant was absent for more than 3 days and upon return to work provided management a medical certificate from her doctor covering the period of her absence. The Arbitrator determined that the grievant's presentation of a medical certificate after an absence of more than 3 days satisfied the requirements of 5 C.F.R. part 630. The Agency has not demonstrated that the Arbitrator erred in this regard and, as a result, has not shown that the award is inconsistent with the regulation.
The Agency regulation MP-5, Part I, Chapter 630.b.(2) and (3) provides:
(2) Upon return to duty an employee on sick leave for more than 3 workdays must complete SF 71, or an ETA request. Satisfactory evidence of the need for sick leave during the period of absence should also be provided. If the medical certificate is not considered a reasonable basis for approval of sick leave, the employee may be required to furnish additional evidence. Usually the employee health physician will make any contact with the employee's physician concerning medical diagnoses. When it would be unreasonable to require a medical certificate because of shortage of physicians, remoteness of locality, or the nature of illness which did not require a physician's services, the employee's signed statement of reasons why other supporting evidence is not furnished may be accepted in lieu of a required medical certification. An employee who has been absent because of illness and who is unable to furnish a medical certificate may be referred to the employee health physician for a medical recommendation.
(3) Generally SF 71, or an ETA request for approved leave, and medical certificates, or their equivalent, should not be required for periods of sick leave of 3 days or less. Where there is reason to believe that an employee is abusing the entitlement to sick leave, a medical certificate may be required for any period of absence (5 CFR 630.403). Ordinarily, the employee should be informed in advance, in writing, that such a requirement has been established in his or her case. The notice of requirement of a medical certificate should set a reasonable time after return to duty for submission of the certificate. Failure to furnish a [ v57 p493 ] medical certificate may be cause for disapproval of sick leave. Such failure will not of itself be cause of disciplinary action.
See Agency Exhibit 9, Attachments to Agency's Exceptions. Under the Agency's regulation, an employee on sick leave for more than 3 workdays is to provide satisfactory evidence of the need for sick leave, such as a medical certificate. In this case, the grievant supplied a medical certificate after her absence of more than 3 days and the Arbitrator determined that reliance on that medical certificate should have been sufficient, i.e., that it constituted a reasonable basis for approving the sick leave. The parties agreed that the grievant did not have a history of sick leave abuse and was not subject to any leave restriction, therefore, that part of the Agency's regulations is not applicable here. As a result, the Agency has not demonstrated how the Arbitrator's determinations are inconsistent with its regulation. We find that the award is not contrary to the Statute or regulations and deny the exception.
B. The Award Is Not Based on a Nonfact
To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593-94 (1993). The mere fact that the appealing party disputes an arbitral finding does not provide a basis for concluding that an award is based on a nonfact. AFGE, Local 1923, 51 FLRA 576, 579 (1995).
Additionally, an arbitrator's interpretation of a collective bargaining agreement does not constitute a matter that can be challenged as a nonfact. See, e.g., AFGE, Local 1802, 50 FLRA 396, 398 (1995). Therefore, this exception provides no basis for overturning the award and we deny the exception.
C. The Arbitrator Conducted a Fair Hearing
The Authority will find an award deficient on the ground that an arbitrator failed to conduct a fair hearing when it is demonstrated that the arbitrator refused to hear or consider pertinent and material evidence, or that other actions in conducting the proceeding so prejudiced a party as to affect the fairness of the proceeding as a whole. See GSA, Region 9, L.A., Cal., 56 FLRA 978, 979 (2000) (citing AFGE, Local 1668, 50 FLRA 124, 126 (1995)). Further, it is well established that an arbitrator has considerable latitude in conducting a hearing, and the fact that an arbitrator conducts a hearing in a manner that a party finds objectionable does not, by itself, provide a basis for finding an award deficient. See id. (citing AFGE, Local 22, 51 FLRA 1496, 1497-98 (1996)).
The Agency's exceptions constitute disagreement with the Arbitrator's admission and evaluation of evidence and his credibility determinations. Generally speaking, disagreement with an arbitrator's findings of fact and evaluation of evidence and testimony, including the credibility of witnesses and the weight to be given their testimony, provides no basis for finding an award deficient. AFGE, Local 3295, 51 FLRA 27, 32 (1995). More specifically, the Authority has held that "[t]he liberal admission by arbitrators of testimony and evidence is a permissible practice." See United States DoD, Def. Mapping Ag., Hydrographic/Topographic Ctr., 44 FLRA 103, 109 (1992). Accordingly, the Agency's eight exceptions provide no basis to find the award deficient and we deny the exception.
D. The Award Does Not Fail to Draw Its Essence from the Parties' Agreement
The Authority will find an arbitrator's award deficient for failing to draw its essence from a collective bargaining agreement when the appealing party establishes that the award: is so unfounded in reason and fact and so unconnected with the wording and purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; does not represent a plausible interpretation of the agreement; or cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement. United States Dep't of Labor (OSHA), 34 FLRA 573, 575-77 (1990).
As set forth above, the Agency contends that because Article 18, Section 5-a states that medical certificates ordinarily would not be required for absences of 3 days or fewer, it means that medical certificates are required for absences in excess of 3 days. While this may be an inference from the agreement, it is not what the agreement expressly provides. The agreement says nothing about medical certificates or additional medical certification for absences in excess of 3 days. The Agency has not demonstrated that the Arbitrator's interpretation of the parties' agreement is implausible or irrational.
Accordingly, the Agency has not demonstrated that the award fails to draw its essence from the parties' agreement. Moreover, we note that the Arbitrator found that an acceptable medical certificate was provided here. Therefore, we deny the exception. [ v57 p494 ]
E. The Arbitrator Did Not Exceed His Authority
An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. United States Dep't of the Navy, Naval Base, Norfolk, Va., 51 FLRA 305, 307-08 (1995).
The Authority will find an award deficient when it is established that the arbitrator determined an issue not included in the subject matter submitted to arbitration. Veterans Admin., 24 FLRA 447, 450 (1986). However, the Authority, like the Federal courts, will accord an arbitrator's interpretation of the parties' stipulation of the issue, or the arbitrator's formulation of the issue to be decided in the absence of a stipulation, the same substantial deference accorded an arbitrator's interpretation and application of a collective bargaining agreement. United States Dep't of Housing & Urban Dev., 24 FLRA 442, 444 (1986). Similarly, both the Authority and Federal courts have consistently emphasized the broad discretion to be accorded arbitrators in the fashioning of appropriate remedies. Id.
The Agency has provided no basis for finding that, applying the foregoing standard, the Arbitrator exceeded his authority. Accordingly, the Agency has not demonstrated that the award is deficient on this ground.
F. The Award Is Not Contrary to Public Policy
In Soc. Sec. Admin., 32 FLRA 765, 767-68 (1988), the Authority stated the following with respect to claims that an award is deficient as contrary to public policy:
Under section 7122(a)(2) of the Statute, we will find an arbitration award deficient on grounds similar to those applied by Federal courts in private sector labor relations cases. In the private sector, courts will find an arbitration award deficient when the award is contrary to public policy. However, this ground is "extremely narrow." U.S. Postal Service v. National Association of Letter Carriers, 810 F.2d 1239, 1241 (D.C. Cir. 1987), cert. dismissed , 108 S. Ct. 1589 (1988). In order to find the award deficient, the public policy in question must be "explicit," "well defined and dominant." W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766 (1983). In addition, the policy is to be ascertained "by reference to the laws and legal precedents and not from general considerations of supposed public interests." Id.; accord United Paperworkers v. Misco, Inc., 108 S. Ct. 364, 373 (1987). The violation of such public policy "must be clearly shown" if an award is to be found deficient.
The Agency has not demonstrated that the award is deficient because it is contrary to public policy. Specifically, the Agency cites no explicit or well-defined policy to support its assertion. The only relevant "explicit" policy in the record relating to this issue is the Agency's cite to the Statute, but no specific portion of the Statute is raised. Accordingly, the Agency's exception provides no basis for finding the award deficient and we deny the exception.
We deny the Agency's exceptions.
Footnote # 1 for 57 FLRA No. 90
Footnote # 2 for 57 FLRA No. 90
As set forth below, the Agency discussed its exceptions generally (Exceptions at 2-3), then submitted 17 exceptions (Exceptions at 28-41), many of which are repetitive. Two of the Agency's exceptions are designated No. 7--they will be referenced as the first and second exception No. 7. The exceptions will be grouped together, based upon the grounds for review.
Footnote # 3 for 57 FLRA No. 90
See also United States Dep't of Commerce, Patent and Trademark Office, 52 FLRA 358, 367 (1996); United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993) (discussing Supreme Court's articulation of deferential standard of review of arbitration awards in United Paperworkers v. Misco, Inc., 484 U.S. 29 (1987)).