American Federation of Government Employees, Local 1612, Council of Prison Locals (Union) and United States, Department of Justice, Federal Bureau of Prisons, United States Medical Center For Federal Prisoners, Springfield, Missouri (Agency)

[ v61 p498 ]

61 FLRA No. 93

LOCAL 1612






February 9, 2006


Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Charles E. Clark filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied a grievance contesting a 7-day suspension imposed on the grievant for being absent without leave (AWOL) from work for approximately two weeks.

      For the reasons that follow, we deny the exceptions.

II.      Background and Arbitrator's Award

      The grievant reported to work on August 1, 2003 but sought out the Agency's staff psychologist after complaining of overwhelming stress. The staff psychologist concluded that the grievant was suffering depression and advised the grievant's supervisor to grant him leave for that day, which the supervisor did. The supervisor reminded the grievant that he had no accumulated sick or annual leave balance, whereupon the grievant asked for advanced additional leave. The supervisor advised the grievant to submit a request for advanced leave or leave without pay (LWOP) to the Warden as only the Warden had the authority to grant that request. The supervisor also advised the grievant that he would be AWOL if he failed to report to work without the advanced leave or LWOP being approved.

      The grievant did not report to work the next work-day. The supervisor contacted the grievant and informed him that he was AWOL and that he would have to bring medical documentation reflecting his doctor's "diagnosis, prognosis, and the date of [the grievant's] expected return to work." Award at 2. The grievant also did not report to work on the following three work days. Each day the supervisor contacted the grievant and requested medical documentation. Thereafter, the supervisor prepared a memorandum to the Warden informing him of the grievant's absences. On approximately August 7, a Licensed Professional Counselor (LPC) who was counseling the grievant contacted the supervisor concerning documentation that the grievant needed, and sent a fax concerning the grievant's condition. [n1]  The Agency also subsequently received a memorandum from a Doctor of Osteopathy (DO) concerning the grievant's condition. [n2] 

      In an August 8 letter to the Warden, the grievant explained why he was absent and requested advanced sick or annual leave until August 16. On August 12, the Warden denied the grievant's request, stating in relevant part:

Based on a review of your current balance[] of sick and annual leave and primarily because of concerns related to possible outside emolument [ v61 p499 ] (farming) and the appearance it may be conflicting with your ability to perform your official duties . . ., I am not approving your request at this time. A review of your Official Personnel File indicates you do not have authorization to participate in outside employment. . . .
Once these concerns have been properly addressed, and resolved, I will reconsider the request.

Award at 5-6.

      The grievant sent another letter to the Warden in response to the denial of the leave request. The grievant explained that he had been confronted with medical and personal issues that had required him to use his leave. The grievant also indicated that on his original job application he had disclosed information about his farming and denied that farming interfered with his ability to perform his work. The grievant returned to work on August 18, 2003.

      On September 8, 2003, the grievant submitted an LWOP request to cover his absence. The Warden denied the request and on November 12 proposed a 7-day suspension for the grievant for being AWOL for that same period. The grievant replied orally to the proposed suspension and submitted additional medical documents to the Warden that indicated the grievant was "possibly" seeking leave approval under the Family and Medical Leave Act (FMLA). Award at 7. On February 10, 2004, the Warden issued the 7-day suspension involved here. Subsequently, the Union filed a grievance challenging the suspension.

      The grievance was submitted to arbitration, and the Arbitrator framed the issue as follows:

Was the disciplinary action taken for just and sufficient cause?
If not, what is the appropriate remedy?

Id. at 2.

      The Arbitrator found that "[a]ll matters pertaining to the several types of leave, application . . . and approval thereof . . . are well established, reasonable, and generally understood by [the] Agency's employees and the [p]arties here." Id. at 7. The Arbitrator noted that the grievant was a fourteen year employee whose "familiarity with Agency-provided benefits . . . was sufficient to foster his prompt resort to the Employee Assistance Program for the services of its psychologist, despite his subsequent criticism of her advice." Id. at 7-8.

      The Arbitrator found that the grievant's testimony concerning personal and family matters "illustrat[ed the grievant's] open-ended responses provided in lieu of the straightforward responsibility of employees, called for by the Agency's Leave Policy[.]" Id. at 8. Thus, according to the Arbitrator, the Warden was entitled to ask the DO for information about the grievant's illness. The Arbitrator found that it was the grievant's responsibility to "take appropriate steps to assure that he provided the information required of him." Id. The Arbitrator found that the grievant's failure to do so "detracted from the proofs essential to establish a valid reason to avoid [the] Agency's disciplinary action." Id.

      The Arbitrator found that the evidence "clearly demonstrated" that the grievant's "effort to avoid the consequences of his AWOL [was] focused upon a grant of either Sick . . . or Annual Leave " rather than LWOP as "provided under the [FMLA.]" Id. According to the Arbitrator, it was "more than a month after his failure to report to work as directed . . . when [the grievant] first used the appropriate form to ask for LWOP," and did not indicate that his request was within the scope of the FMLA. Id. The Arbitrator noted that the leave form includes a column to be completed by an employee seeking leave under the FMLA, but the grievant did not mark any options in that column when he applied for LWOP.

      The Arbitrator found that the Union relied on 29 C.F.R., Chapter 5, Part 825, regulations applying to the United States Postal Service employees, rather than to employees of the Agency. The Arbitrator found that Agency employees are governed by the FMLA, 5 U.S.C., Chapter 63, Subchapter 5 and the Office of Personnel Management (OPM) regulations, 5 C.F.R. Part 630, Subpart L. Noting Article 3(a) and (b) of the parties' collective bargaining agreement (CBA), the Arbitrator found that the FMLA, 5 U.S.C., Chapter 63, Subchapter 5 and the regulations issued by OPM were controlling here.

      The Arbitrator found that under the FMLA and OPM regulations, the matter "determinative of the issue" here is whether the grievant had a "serious health condition" as defined by 5 U.S.C., Chapter 63, Subchapter 5. Id. at 9. The Arbitrator noted that "serious health condition" is defined as "`an illness, injury, impairment or physical or mental condition that involves' either (A) inpatient care in a hospital, hospice or residential medical care facility, or (B) continuing treatment by a health care provider.'" Award at 9 (quoting 5 U.S.C. § 6381(5)) . The Arbitrator also noted that, as authorized by the FMLA, the "Agency requires employees to submit administratively acceptable medical [ v61 p500 ] documentation in a timely manner to support a request for leave." Id. The Arbitrator noted that the FMLA states that the medical certification must include "(1) the date the serious health condition commenced, (2) the probable duration of the serious health condition, and (3) the appropriate medical facts within the knowledge of the health care provider regarding the serious health condition, including a general statement as to the incapacitation, examination or treatment that may be required by the health care provider." Id. (citing 5 U.S.C. § 6383(b)). Also, according to the Arbitrator, the FMLA requires a statement that the employee is unable to perform one or more of the essential functions of his or her position, and additionally, an employee may not retroactively invoke his or her entitlement to family and medical leave.

      Applying the above criteria, the Arbitrator found that the LPC's fax satisfied many of the specific elements required for family leave. However, according to the Arbitrator, "unfortunately" for the grievant, the diagnosis, prognosis, and treatment did not. Id. at 9. The Arbitrator found that the fax, which stated, in part, "[i]n my opinion, [the grievant's] worry and concern over marital [problems] could be alleviated to some degree by returning to work and occupying his thoughts elsewhere," did not "provide any support for [the grievant's] AWOL, nor [did] it serve to avoid the disciplinary suspension." Id. at 3 and 9.

      The Arbitrator further found that the letter from the DO concerning the grievant's condition did not satisfy the FMLA criteria. The Arbitrator determined that the letter did not state when the grievant was seen; what examination was made; what signs or symptoms were observed to result in a diagnosis of acute depression; what treatment was provided or its duration; or which work duties the grievant would be unable to perform. The Arbitrator concluded that "[w]ithout denigration of the gravity" of the grievant's condition when seen by the first doctor, "the content of [the Doctor of Osteopathy's] . . . statement totally fails to meet the statutory and regulatory requirements." Id. at 10.

      Lastly, the Arbitrator found that it was 107 days before the FMLA was first raised by the grievant as his basis for avoiding AWOL and the suspension. The Arbitrator determined that this argument could not "sustain [the grievant's] efforts to avoid the consequences of his proven conduct because it is [a] quintessential retroactive claim [that] is barred" by the FMLA. Id. Accordingly, the Arbitrator denied the grievance, finding that disciplinary action was taken for just and sufficient cause.

III.      Positions of the Parties

A.      Union's Exceptions

      The Union contends that the Arbitrator erred in failing to find that the Agency violated the FMLA, 5 U.S.C., Chapter 63, Subchapter V.

      In that regard, the Union asserts that the Arbitrator failed to address the FMLA in his decision. The Union states that OPM regulations, 5 C.F.R. Part 630, Subpart L, implementing the FMLA have been clarified to require agencies to inform employees of their entitlements and responsibilities under the FMLA.3/ [n3]  In support, the Union refers to OPM's Summary of Major Revisions in OPM's Regulations on the FMLA of 1993, which states, in part:

NOTIFICATION OF FAMILY AND MEDICAL LEAVE ACT (FMLA) Entitlements. In response to concerns that employees are not fully informed of the provisions of the FMLA, the regulations have been clarified to require agencies to inform employees of their entitlements and responsibilities under the FMLA.

Exceptions, Attachment 5 (quoting a "Summary of Major Revisions in [OPM's] Final Regulations on the [FMLA] of 1993)." (OPM Guidance).

      The Union asserts that the Agency's Human Resource Manager testified "that the [A]gency . . . has never to his knowledge given any kind of training on the FMLA . . . ." Id. at 2. According to the Union, the grievant was not informed of his entitlement to the FMLA until the Warden "notified" him by memorandum on November 12, 2003. Id. The Union asserts that if the grievant had been made aware of his entitlement to the FMLA, then he would have invoked his rights in a timely manner and satisfied the Agency's requirements. The Union notes that in the Agency's post-hearing brief, the Agency claimed that the grievant should have been aware of the FMLA because of the information contained on the request for leave form. The Union states that the form advises employees to contact their supervisor and/or other personnel to obtain additional information. According to the Union, the grievant did contact his supervisor and was not informed of his entitlement to the FMLA. [ v61 p501 ]

      Based on the above, the Union argues that the Agency violated the FMLA "by not providing training to all employees in a timely manner . . . ." Id. at 2. Therefore, the Union asserts that the grievant's suspension was not proper and thus the award should be set aside and the grievant granted LWOP rather than being charged with AWOL.

B.     Agency's Opposition

      The Agency asserts that the "Union argues, for the first time, that the grievant should not have been charged AWOL . . . and suspended for seven days . . ., because the Agency was required to provide him, as well as other employees, with training on the [FMLA], 5 U.S.C. §§ 6381-6387, and failed to do so." Opposition at 2. The Agency states that, at the arbitration hearing, the Union maintained that the "grievant should not have been charged AWOL because 29 C.F.R. § 825.303(b) does not require that employees `expressly assert [their] rights under the FMLA or even mention the FMLA, but may only state that leave is needed' when furnishing notice to an employer when their need for Family and Medical leave is unforeseeable." Id. at 2 (quoting Union's post-hearing brief at 3).

      According to the Agency, the Union did not assert during arbitration that the 7-day suspension should be rescinded because the Agency failed to provide the grievant with FMLA training. The Agency notes that the Union now "admits in its exceptions that it `erred' by relying on . . . Title 29, Code of Federal Regulations, rather than . . . Title 5[.]" Id. at 3.

      The Agency contends that the Union is "attempting to litigate an issue that it failed to recognize and litigate at the arbitration." Id. at 5. The Agency asserts that such exception should be dismissed "because the only issue raised by the Union is one that could have been, but was not, presented to the [A]rbitrator, and thus the Authority cannot consider it pursuant to 5 C.F.R. § 2429.5." Id.

      The Agency further asserts that even assuming the Union had presented the issue raised here to the Arbitrator, the exception should still be denied because the Agency fully complied with 5 C.F.R. § 630.1203(g). The Agency contends that the clarification to which the OPM Guidance refers is included in 5 C.F.R. § 630.1203(g). Citing the Federal Register, the Agency refers to OPM's comments in the final rule implementing the final FMLA regulations, wherein OPM clarified § 630.1203(g) and provided guidance on what agencies needed to do to comply with the regulation. See 61 Fed. Reg. 64441, 64444-45 (Dec. 5, 1996). Referring to Agency resources containing information concerning employees' entitlements and responsibilities under the FMLA, the Agency asserts that it "fully complied with the requirement" of OPM's Guidance and regulation by providing employees with access to extensive information regarding their entitlements and responsibilities under the FMLA. Opposition at 7.

IV.     Analysis and Conclusions

A.      The Exception Is Not Barred by § 2429.5 of the Authority's Regulations

      The Union argues that the award is deficient because the Arbitrator failed to find that the Agency violated the FMLA by failing to provide training on the FMLA to employees, including the grievant. The Agency contends that the Union's argument should not be considered under § 2429.5 of the Authority's Regulations because the Union did not raise this argument before the Arbitrator.

      Under § 2429.5 of the Authority's Regulations, the Authority "will not consider . . . any issue, which was not presented in the proceedings before the . . . arbitrator." See Social Security Administration, Headquarters, Balt., Md., 57 FLRA 459, 460 (2001).

      Before the Arbitrator, the Union argued that the employee was not sufficiently "notified of his rights" under "the FMLA, 29 C.F.R. § 825.302(d)[.] Exceptions, Attachment 2 at 1. Although the Union cited incorrect (United States Postal Service) FMLA regulations before the Arbitrator, the Agency pointed this out to the Arbitrator and the Arbitrator relied on the correct OPM regulations. In these circumstances, the matter raised in the exception--the grievant's rights under the FMLA-- was presented in the proceedings before the Arbitrator and fully addressed by the Arbitrator in his award. That is, despite the Union's incorrect cite both the parties and the Arbitrator were fully aware of the FMLA issue. Accordingly, the Union's exception is not barred by § 2429.5.

B.      The Award Is Not Contrary to Law

      The Union contends that the Arbitrator failed to find a violation of the FMLA. The Union states that OPM regulations, 5 C.F.R. Part 630, Subpart L, implementing the FMLA require agencies to inform employees of their entitlements and responsibilities and the Agency failed to comply with this requirement.

      When a party's exceptions dispute an award's consistency with law or regulation, the Authority reviews the questions of law and regulation raised by the award [ v61 p502 ] and the exceptions de novo. See, e.g., United States Dep't of Health and Human Ser., Ctr. for Medicare and Medicaid Serv., Balt., Md., 57 FLRA 704, 706 (2002). In applying the standard of de novo review, the Authority determines whether the Arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      We construe the Union's assertion that the Arbitrator failed to address the FMLA as a contention that the award is contrary to law. With respect to OPM's regulations, the Union refers to OPM's clarification of 5 C.F.R. Part 630, Subpart L. As the language referenced by the Union concerns OPM's comments on 5 C.F.R. § 630.1203(g), the Union's assertion with respect to the regulation is construed as a claim that the award violates 5 C.F.R. § 630.1203(g), which provides that:

Each agency shall inform its employees of their entitlements and responsibilities under this subpart, including the requirements and obligations of employees.

5 C.F.R. § 630.1203(g).

      The Arbitrator interpreted and applied the provisions of the FMLA and found, based on the evidence, that the grievant had not met the requirements of the FMLA for receiving LWOP. In that respect, the Arbitrator applied the definition of "serious health condition" under 5 U.S.C. § 6381(5). The Arbitrator also applied the requirements of 5 U.S.C. § 6383 in evaluating the Agency's request for medical certification and the sufficiency of the grievant's request. The Union has not cited any particular section of the FMLA that the award violates. Where there is no explanation supporting an exce