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Bureau of Prisons
116 LA (BNA) 1170
FMCS Case No. 01/08836
January 28, 2002
Donald P. Goodman, Arbitrator*
The Union framed the issue as “Did the Agency document, publicize and/or use the Correctional Officers reasons for unscheduled sick leave in violation of law and the Master Agreement, and if so, what shall be the appropriate remedy(s)?”
The Agency framed the issue as “Does management violate the Master Agreement when it maintains sick leave usage? If so, what is an appropriate remedy?”
Because there was no mutual statement of the issue, the parties stipulated the Arbitrator is to frame the issue.
A review of the grievance is appropriate and upon doing so the grievance form in item 6 requires specificity in identifying in what way the Agency violated the Master Agreement and/or statutes. Accordingly, the issue is:
Did the Agency maintain and refer to Correctional Employees request for leave and reasons thereof in violation of the references identified in Item 5 of the grievance form? Did the Agency selectively and intentionally discriminate against said employees when administering the Incentive Awards Program and Merit Promotion Plan?
If the answer to either or both of these is in the affirmative, what is the appropriate remedy?
ARTICLE 20—SICK LEAVE
Section a. Employees will accrue and be granted sick leave in accordance with applicable regulations, including:
1. sick leave may be used when an employee receives medical, dental, or optical examinations or treatment; is incapacitated for the performance of duties by sickness, injury, or pregnancy and confinement; is required to give care and attendance to a member of his/her immediate family who is afflicted with a contagious disease (as defined by applicable regulations); or would jeopardize the health of others by his/her presence at his/her post of duty because of exposure to a contagious disease;
Additionally, if appropriate, sick leave requests will be handled in accordance with the provisions of the Family Friendly Leave Act, and the employee may also elect leave under the Family and Medical Leave Act;
2. the Employer may require the employees to submit requests for, or substantiate, sick leave on Standard Form 71, Application for Leave. The Employer will make the SF-71 available for completion and signature by employees;
3. except in an emergency situation, any employee who will be or is absent due to illness or injury will notify the supervisor, prior to the start of the employee's shift or as soon as possible, of the inability to report for duty and the expected length of absence. The actual granting of sick leave, however, will be pursuant to a personal request by the employee to the immediate supervisor, unless the employee is too ill or injured to do so, for each day the employee is absent, up to three (3) days, provided the supervisor has not approved other arrangements. If the supervisor is unavailable, the employee will contact the next available supervisor in the chain of command to request sick leave;
4. employees returning from sick leave will so notify their supervisors as far in advance of the start of their shifts as possible. In the case of an extended illness of more than three (3) days, employees will periodically update their supervisors as to their ability to return to work; and
5. the Employer may require the employee to submit a medical certificate or other administratively acceptable evidence, i.e., written statement, of the reason for an absence for family care purposes. The requirements for documentation will be the same as that required in Section c. of this article.
Section b. Employees will not be required to furnish a medical slip to substantiate sick leave for three (3) days or less. However, in cases of questionable sick leave usage of any length, the employee will be given advance notice, in writing, that all future absences due to sickness must be substantiated by a medical certificate. This requirement will be reviewed every three (3) months by the Employer and the determination of whether to continue will be forwarded to the employee in writing. When the decision to require or continue to require a medical certificate is discussed with the employee, the Employer will notify and give the Union the opportunity to be present. Sick leave records will be provided to the Union in accordance with Section e. of this article.
Section c. In those instances where an employee was on sick leave in excess of three (3) days and did not require medical attention, the Employer may accept a written statement from the employee in lieu of a medical certificate.
Section d. When required by the exigencies of the situation and when the employee can be expected to return to duty, sick leave, up to a total of thirty (30) days, may be advanced for disability or ailment. Advance sick leave because of pregnancy may be granted for medical reasons. The Chief Executive Officer may grant the advance sick leave as requested or may modify or deny the request. Denials will be forwarded to the employee in writing.
Section e. Upon request of the employee concerned, sick leave records will be made available to the employee and/or the employee's representative.
Article 31 Grievance Procedure
Section d. Grievances must be filed within forty (40) calendar days of the date of the alleged grievable occurrence. If needed, both parties will devote up to ten (10) days of the forty (40) to the informal resolution process. If a party becomes aware of an alleged grievable event more than forty (40) calendar days after its occurrence, the grievance must be filed within forty (40) calendar days from the date the party filing the grievance can reasonably be expected to have become aware of the occurrence. A grievance can be filed for violations within the life of this contract, however, where the statutes provide for a longer filing period, then the statutory period would control.
On February 5, 2000 the Union filed the instant grievance claiming that the agency violated:
Specifically the Union states “The Agency maintains and referred to Correctional Employees request for leave and reasons thereof in violation of the afore mentioned references to selectively and intentionally discriminate against said employees when administering the Incentive Awards Program and the Merit Promotion Plan.”
The union asks that the Arbitrator order the Agency to:
1. Cease the use of any form to record employees request for leave except the Standard Form 71.
2. Maintain Standard Form 71 in compliance with prescribed Privacy Laws and Regulations.
3. Retroactively approve these employees for Incentive Awards they were denied because of the agencies unlawful maintenance, and disclosure of derogatory and private materials.
4. Discipline supervisors who violated the Rights of Privacy.
5. Order a posting by agency, that it will not violate the employees Rights to Privacy, Merit Promotions, and Incentive Awards.
6. Any other remedy(s) deemed appropriate by arbitration.
It is uncontested that the Agency used a form other than SF71 in administering leave requests. That form is attached to and is a part of this Opinion.
Since 1996 and particularly since December 20, 1998 supervisors were instructed to document correctional officers reasons for requesting leave and to provide a copy of each such leave request to the office of the warden. The Union states these actions violated the Master Agreement and resulted in unfair and inequitable treatment of correctional officers. These actions violated the privacy rights of employees. The Agency used these requests for leave in a public and adverse way to effect the conditions of employment. When the Agency disclosed the use of sick leave and the reasons therefor to others it violated in a capricious way the privacy rights of employees.
Copies of these sick leave requests were provided the warden on a daily basis. Apparently the warden believed there was an abuse of sick leave resulting in overtime pay. When filling out these sick leave forms supervisors attempted to obtain as much information as possible and even had some forms returned for additional information.
The Agency did not have a need to know the specific reason an employee requested unscheduled sick leave. Nor did it have a right to that information. Article 20 Section A 3 requires only that the employee state his inability to report for duty and the expected length of the illness. Too, entries were made in the performance log of individuals without providing an opportunity for the individual affected to review the entries prior to the official use of such entries.
Request for sick leave forms were routinely filed in performance files. These forms contained privacy matters such as medical issues, history of sick leave usage, time and attendance matters, reports of traumatic injury, claims for COP, etc. and were available to anyone. The leave requests were provided the warden daily and copies were maintained by the warden who used these records when considering officers for awards and promotions.
The only reason the Agency would have to monitor sick leave usage would be to discriminate against correctional officers in matters such as performance awards and promotions.
Presumably the Agency ceased demanding the employees give detailed information when requesting sick leave after the grievance was filed but by then the damage had been done. Sick leave usage had already penalized employees when the Agency denied promotions and awards because of such usage.
It is also apparent that officers in corrections were treated differently and in a discriminatory manner than other facility employees. This is evidenced by a report dated January 5, 2001 from Associate Warden Fox to Warden Morris. That report contained the names of officers in corrections and the number of sick hours used during December 2000. The names and hours used by other departments were not included. Too, the local form used to report sick leave was not used in other departments, just in corrections.
It is important to review the testimony of witnesses. Sheffer testified that he attended meetings with the Warden concerning promotions and awards and during those meetings Warden Morris would refer to a sick leave usage file. Carmack testified he was in a meeting in which Warden Morris said a sick use abuser would not be promoted or granted awards. Drinkwater stated he has applied for promotion several times to no avail and believes it refers back to when Morris told him he used too much sick time to be promoted. Russell testified that he had never been counseled or disciplined for use of sick leave yet he was told by a supervisor he would not be promoted because of his use of sick leave.
McNabb testified he heard Warden Morris state that leave usage and the attitude of an officer were considered when considering officers for promotion. This was corroborated by Skaggs. McNabb further testified he was told by a supervisor that his recommendations for awards were denied because the officers he recommended had used too much sick leave.
The agency probably will argue that the Arbitrator has to authority to award damages. In this connection the attention of the Arbitrator is invited to AFGE Local 987 and U. S. Department of the Air Force, Air Materiel Command, Robins AFB, Georgia, 57 FLRA 97.
The grievance must be sustained and the remedies requested must be granted.
Forty days the Union introduced testimony concerning events as far back as 1996. The Master Agreement became effective on March 9, 1998. What occurred prior to March 8, 1998 is not grievable. But more controlling is Article 31 Section d which states that grievances must be filed within 40 days of the alleged offense. The grievance was filed on February 5, 2001. Forty days prior to that was December 27, 2000.
The Union claims the Agency has no right or obligation to determine the reasons employees request sick leave. That flies in the face of Article 5 Section a of the Master Agreement. That section reserves to management the right to manage and direct employees, to assign work and to discipline.
Preventing sick leave abuse is a legitimate function of management and in doing so the Agency may develop reasonable rules for documentation of illness and the policing of sick leave usage. In this regard the attention of the Arbitrator is invited to 5 C.F.R. Section 630.403. A request for sick leave must be supported by administratively acceptable evidence. The Agency determines what is or is not “administratively acceptable evidence”. (See also 5. C.F.R. Section 630.401). (See also American Federation of Government Employees Local 2052 and Department of Justice Bureau of Prisons Federal Correctional Institution, Petersburg, Virginia, 30 FLRA 837). The Agency certainly has an obligation to guard against fraudulent use of sick leave.
Warden Morris stated there is difference between those who legitimately use sick leave and those who abuse sick leave. The Master Agreement does not foreclose the consideration of the use of sick leave when promotions and the granting of awards is being determined. The Union claims such consideration is not legitimate. Neither does the Merit Promotion Plan prevent the consideration of sick leave use.
The use of sick leave has not been the sole determining factor when promotions and incentive awards are made. The Union produced several witnesses who claimed their use of sick leave preventing them from promotions and incentive awards. This was not substantiated. Union witnesses Skaggs, Carmack, Pennington, Carollio and Russell all received awards during the 18 months leading up to the arbitration hearing.
As a remedy the Union asks the Arbitrator to order all the grievants be given an incentive award. The Comptroller General has determined that is beyond the authority of the Arbitrator.
The Merit Promotion plan is incorporated in the Master Agreement. Item 18 c. page 39 of that document provides that non-selection for promotion is not appropriate for consideration as a grievance. The grievants complained they were not selected for promotion yet the Union made no claim that candidates for promotion were not ranked or rated properly. As long as proper procedures were followed the Warden was free to select anyone from the best qualified list.
Even in spite of sick leave use many union witnesses had been promoted including Russell.
The Union claims the privacy rights of employees were abridged. It is true that locally developed sick leave forms were filed in performance files. These files were maintained by and on file in the offices of supervisors and were available only on a need to know basis. Rehing testified he was required to report to the Personnel Office the number of employees who used Family Friendly Leave and the reasons for such leave. What he failed to say that these were included in his duties as a Time and Attendance Clerk and that such reporting was required by 5 C. F. R. Section 630.408. There was thus no violation.
Clearly the grievance is without merit and must be denied.
Section D Article 31 of the Master Agreement states grievances must be filed within forty calendar days of the alleged grievable occurrence. The instant grievance was filed on February 5, 2001. We are thus concerned only with any offenses alleged in the grievance which may have occurred on or after 27 December 2000.
Standard Form 71 is the official form for requesting leave. On its face it appears it is to be completed and signed by the employee. Obviously, if the employee phones in requesting leave he can not sign it at that time. The form itself includes a blank in Item 4 for requesting sick and other types of leave and in Item 5 whether the request is for Family and Medical Leave. It seems to me that a device is required to record the requested leave at the time it is requested. Too, there needs to be some way for supervisors to report to higher levels in the chain of command absences at the time they are requested. The locally designed form accomplished that.
If SF 71 is the only instrument to be used then the person receiving the call would have to ascertain whether the requested absence is for the employee calling in or for a member of the employee's family. If there was possible too searching questions asked of the employee when using the local form that could also be true if the supervisor initiates SF 71 at the time the employee calls in. When the employee returned to work the remainder of the form would be completed and signed by the requesting employee.
Some of any potential problem might rest with the way the employee calls in. If he simply says “put me on sick leave today” the supervisor would then be required to ask “when do you expect to return to work” and “Is this for you or a member of your family”. On the other hand if an employee calls in and says “place me on leave today I must take my wife to the hospital and I expect to be in tomorrow” there is probably no further question to be asked of the supervisor. There were probably some instances when supervisors asked too searching questions. That is not because a local form was used but rather lack of adequate training of supervisors.
Management has a legitimate purpose to monitor the use of sick leave. Indeed it has an obligation to do so.
The Union points to January 5, 2001 report from Associate Warden Fox to warden Morris as proof that employees in the corrections department were singled out in that names and hours used of employees were reported. It states no such list of names was furnished for other departments.
A question could be raised as to how the Union obtained a copy of this report.
The report does reveal some telling statistics. According to the report there were 151 employees assigned in December 2000. Also according to the report 92 employees utilized sick leave that month. It seems highly unusual that roughly 61 percent of employees would be sick in any given month.
Without controls and the monitoring of sick leave by management the potential for abuse is great. Employees have a statutory right to sick leave.
Too, a pattern of absences of the day just before an employee's work week sometimes serves to identify a troubled employee who is in need of assistance.
I wonder how many employees have carefully read Item 7 of SF 71.
The Union claims the privacy rights of employees have been violated. The forms were kept in a file maintained and located in offices of supervisors and available to those with a need to know. The forms were submitted to the office of the Warden. Testimony indicated the forms were returned to supervisors by placing them in the supervisor's box. The Union claims they were thus available for any one to see. If others looked in the box of the supervisor that would be an infraction by those others. A fellow employee did see the forms but that was in conjunction with his position as Time and Attendance Clerk. That person would also have access to SF 71.
The report of January 5, 2001 from Fox to Morris did contain the names of persons who had used sick leave during December 2000. That did not amount to “publicly” releasing personal information. The report was not intended for wide distribution.
5 C.F.R. Section 630.408 requires the Agency to keep certain records of sick leave use.
The Union also claims sick leave use was erroneously used when determining who would be promoted or issued awards. There was no convincing evidence to suggest promotions were not made from those on a “best qualified” list nor that the list were compiled in violation of the Master Agreement or statutes. The warden has wide discretion in granting promotions from among those on a “best qualified” list. I found nothing that precludes the use of sick leave from the factors the warden may consider either in the Merit Promotion plan or in 5 C.F.R. section 335. Even so, by letter dated March 5, 2001 the Warden states sick leave usage is not considered in the administration of the Merit Promotion Plan or Incentive Awards Program.
Witness Carmack presented a page from his pocket calendar on which he wrote that at a meeting the Warden stated that those who used sick leave would not be promoted or receive incentive awards. This requires several comments. First, the meeting supposedly took place on August 5, 1999. If the Union believed that was a violation the time to grieve would have been then, not months later. Secondly, the calendar notation is a reflection of what the writer interpreted the warden to have said. Third, even if true neither the Merit Promotion Plan nor the Incentive Awards program precludes the consideration of sick leave usage. Fourth, if sick leave usage was considered in 1999 by letter dated March 5, 2001 the Warden wrote it was not now used. Fifth, the record is clear that some who have used sick leave have been promoted and have received Incentive Awards.
The Merit Promotion Plan clearly states in Paragraph 18 c. that failure to be selected for promotion when proper procedures are used in preparing a list is not grievable.
The Agency did not maintain and refer to Correctional Employees request for leave and reasons thereof in violation of the references identified in Item 5 of the grievance form. The Agency did not selectively and intentionally discriminate against said employees when administering the Incentive Awards program and Merit Promotion Plan.
The grievance is denied.
The undersigned arbitrator, having been duly designated in accordance with the arbitration agreement entered into by the Parties and having been duly sworn and having duly heard the proofs and allegations of the Parties, awards as follows:
The Agency did not maintain and refer to Correctional Employees request for leave and reasons thereof in violation of the references identified in Item 5 of the grievance form. The Agency did not selectively and intentionally discriminate against said employees when administering the Incentive Awards Program and Merit Promotion Plan.
The grievance is denied.
*Selected by parties through procedures of the Federal Mediation and Conciliation Service
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