Pennsylvania Bureau of Mediation
Case No. 4154
Municipality of Penn Hills
Municipal Employees Organization of Penn Hills
118 LA (BNA) 1806
September 25, 2003
Matthew M. Franckiewicz, Arbitrator
Contract Provisions Involved
The following provisions of the collective bargaining agreement are pertinent to this case:
Article 5 Holidays
B. Personal Days—Regular full-time employees shall be entitled to four (4) personal days with pay calculated at the base hourly rate of pay times the employee’s normally scheduled hours of work. It is agreed that all employees must use three (3) out of the four (4) personal days no later than November 1, of each calendar year. Failure to use the days by November 1 shall result in losing the days without compensation. Personal days shall not be taken on any of the holidays listed Section 1(A) of this Article. Approval must, however, be obtained at least seventy-two (72) hours in advance of the date requested. Advance approval may, however, be waived by the Department Director or his designated representative. Personal days cannot be approved more than fourteen (14) calendar days in advance of the date requested.
Article 8 Municipal Rights
The Municipality reserves and retains, solely and exclusively, all of its common law rights to manage the business of the Municipality as such rights existed prior to the execution of this Agreement, subject, however, to the provisions of this Agreement. Matters of inherent Management policy which are not abridged by this Agreement shall include, but are not limited to, such areas of discretion or policy as the functions and programs of the Employer, standards of services, its overall budget, utilization of technology, the organizational structure and selection and direction of personnel, determination of the number of hours per day or per week operations shall be carried on, (the determination of the number of employees required), the assignment of work to such employees in accordance with the requirements determined by the Municipality, the establishment and change of work schedules, the right to make and enforce reasonable rules for the maintenance of discipline, the right to suspend, discharge, or otherwise to take such measures as the Municipality may determine to be necessary for the orderly and efficient operation of the Municipal business, provided, however, that such rights shall not be used for the purpose of discrimination against members of the Bargaining Unit because of their membership in the Union.
Article 9 Disciplinary Action
When the Employer deems it necessary to suspend or discharge an employee, the Employer will notify the Union through the employee’s steward, and if the discipline or discharge is administered to the employee personally, the steward will be present at the time the warning is issued, unless the employee elects not to have the steward present at such meeting, and in any event a copy of such disciplinary or discharge action shall be given to the grievance committeeman and copy sent to the Union within seventy-two (72) hours. If the steward is present when the disciplinary or discharge notice is issued, he will initial receipt of a copy thereof. In the event the employee or the Union believe that the suspension or discharge that was given out was without just cause, the employee or the Union may file a grievance in writing within six (6) working days of the disciplinary action or discharge, or such grievance shall be null and void. Such a grievance shall be processed starting at Step 3 of the Grievance Procedure.
Article 13 Leave of Absence
Section 1: Sick Leave
A. Regular full-time members of the Bargaining Unit shall be qualified to receive sick leave benefits for non-service-connected sickness or disability, which renders such members unable to perform their duties in accordance with the following schedule subject to the following conditions:
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3. Regular full-time employees shall accumulate sick leave at the rate of one and one quarter (11/4) days per month up to a maximum of one hundred twenty-five (125) days total accrual.
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B. Sickness or injury covered by Worker’s Compensation shall not be charged against accrual [of] sick leave. Full-time members are required to report illness to their supervisors before the start of their shift, and failure to do so may be grounds for disciplinary action. Sick leave will not be accrued while a full-time member is on leave of absence without pay.
C. Sick leave is earned to cover periods of illness or non-occupational disability. It is understood and agreed that the abuse of sick leave as defined by the Municipality’s Rules and Regulations constitutes just cause for discipline and it is the intent of the Municipality to take corrective action up to and including discharge from employment.
D. Upon request of the Employer, all employees shall be required to present a doctor’s certificate for any usage of sick leave in excess of three (3) consecutive days, indicating the nature of the absence. Claiming sick leave benefits, except as permitted, may be cause for disciplinary action.
The Administrative Code, at Section 288.13 provides in part:
(a) Policy. It is the policy of the Municipality that sick leave is only to be used when employees are suffering from such sickness or injury which prevents them from performing their official duty. Employees who are in violation of this policy and regulations may be subject to disciplinary action up to and including discharge from employment in accordance with Section 288.08 et seq.
(b) Regulations. * * *
(5) Abuse of sick leave. Employees shall not use sick leave to avoid the performance of their duties. Some examples of sick leave abuse are:
A. Establishing a pattern of calling off sick on the first or last workday of the workweek;
B. Establishing a pattern of calling off sick on holidays, weekends or days of special functions or activities;
C. Establishing a pattern of calling off sick on the last scheduled or first scheduled workday before or after a holiday;
D. Calling off sick immediately prior to or immediately following vacation periods;
E. Establishing a pattern of using sick leave to report late or leave work early;
F. Calling off sick, or leaving work early, to avoid the performance of an undesirable duty or to avoid a certain work schedule, including overtime work;
G. The use of sick days as “personal days” or the use of sick days for any purpose other than illness or injury which prevents the employee from performing his or her duty; or
H. Chronic or excessive use of sick leave, including unpaid sick leave.
Grievant P__ is part of the Line Maintenance Crew in the Water Pollution Control Department. He has about 10 years service with the Municipality. His job involves tasks such as dealing with sewer backups, locating manholes, adjusting the height of manholes to grade, marking lines in connection with excavation and preventive maintenance. All the work is performed outside, and the job is physically demanding, involving tasks such as lifting 150+ pound manhole covers, and in some cases using a sledge hammer or jackhammer to loosen a cover, and dragging hoses from a truck to the location where work is being performed, sometimes in the woods, and up and down Western Pennsylvania hills. There is a substantial amount of lifting and transporting of heavy objects.
Other than for absenteeism, P__ has not been disciplined by the Employer.
On September 23, 2002 P__ was issued a one day suspension for alleged abuse of sick leave. The letter references a September 19, 2002 written warning, which asserted that P__ was continuing to abuse sick leave. The September 19 warning gives the period covered as June 18 through September 19.
P__ had previously received an oral warning in June 2000 and written warnings dated February 9, 2001 (covering the period June 16, 2000 to February 9, 2001) 1 and June 6, 2002 (covering January 1, 2002 through June 6, 2002),2 each stating that the warning was being issued for abuse of sick leave. The June 2002 warning also states that P__’s attendance would be reviewed every six months. All the warnings referred to above cite Article 13 Subsection 1(C) of the collective bargaining agreement. In each instance Director of the Water Pollution Control Department James Schaffer reviewed P__’s attendance card with him and pointed out the instances that indicated a pattern of sick leave abuse to him, and provided P__ a copy of his attendance record. Although the June 2002 warning letter stated that P__ would be reviewed every six months, Schaffer testified that he told P__ he would be reviewed quarterly.
Each year Schaffer reviews the attendance record of each employee under his management. In cases where Schaffer determines that the employee has abused sick leave, he may instruct the employee (as he did with P__) that the employee will be subject to more frequent review, usually in three or six months.
The collective bargaining agreement provides that employees earn 120 hours sick leave annually, and can accumulate up to 1000 hours. P__’s attendance records disclose that he entered the year 2000 with 176 hour of sick leave, and that he entered the year 2001 with 228.75 hours of sick leave (which would indicate that he used 67.25 hours of sick leave in 2000). He entered the year 2002 with 209.75 hours of sick leave (which would indicate that he used 139 hours of sick leave in 2001). His attendance record for 2002 shows 126.75 hours of sick leave used, the last 22 of which were after the suspension at issue in this case.
Schaffer stated at the hearing that he considered P__ to have violated subparagraphs A, D and E of 288.13(b)(5) quoted above. By my count, Schaffer identified 14 “pattern” absences by P__ in 2002 prior to September 23. Of these nine were absences adjacent to a day off, holiday or vacation day. But two of these nine instances involved unpaid leave rather than paid sick leave.3 Schaffer cited nine occasions as demonstrating a pattern of taking partial sick days, all involving early departures rather than late arrivals. Four of these (March 22, April 19, May 28,4 and August 9) were also days adjacent to a weekend (March 22, April 19 and August 9 were Fridays) or a holiday (May 28 was the day after Memorial Day). During the period June 18 through September 19, 2002 (which, as stated in the September 19 warning, is the period addressed by the suspension) there were five absences that would fit one or another of the “patterns” listed in the Administrative Code: July 1 (first day of the work week), September 18 (first scheduled work day after vacation), and three partial day absences (July 18, August 9 [which was also a Friday], and August 28). The Employer does not dispute P__’s testimony that he never failed to report off with respect to any of his absences.
P__ stated that the heavy lifting and occasional slips on wet grounds caused frequent aches and pains, which sometimes led him to take a sick day. He stated that he lost work due to an on the job back injury in late 2000, although his attendance record suggests it was actually late 2001, and that he suffered occasional flare ups from this injury. Anti-inflammatory medications and muscle relaxers did not alleviate his pain, and he sought pain relief through drinking. He recognized that he had a drinking problem, and entered the Employee Assistance Program. He completed a six week outpatient rehabilitation program on March 6, 2002. He attended Alcoholics Anonymous meetings almost daily for about four months but suffered a relapse around the summer of 2002 for which he sought hospital admission and thereafter resumed attending AA. He usually attended evening AA meetings, but occasionally when he felt a particularly urgent need, he left work early to attend noon AA meetings. He estimated that about five of his partial day absences were to attend noon AA meetings.
Jack McClintock, a 33 year employee who worked in line maintenance for about 10 years, estimated that he used more sick leave when he held that job, because of the nagging injuries and the susceptibility to flu since the job involved constant exposure to the elements. Raymond Rall, also a long term employee who spent about 12 years in line maintenance and the rest of his time as a plant operator, provided a spreadsheet listing his sick time and occupational injury time each year. In general, it appears that Rall used more sick leave and lost more time to work related injuries when in line maintenance than as a plant operator.
Much of the work in the Department is done on a team basis, so that absence of a line crew member, particularly when the absence is unanticipated, disrupts the Department’s schedule. Either the project involved must be postponed because of the absence, or an employee must be pulled from a different project or division, with ripple effects on other work. As far as Schaffer could recall, P__’s absences did not necessitate overtime work by other employees.
During negotiations for the current collective bargaining agreement, the Employer proposed modifying the sick leave provisions, to reduce sick leave accrual to 12 days (96 hours) per year, and to require medical statements for absences of a single day adjacent to other days off (vacations, holidays, personal days, weekends). These proposals were not incorporated into the agreement, which retained the language of the prior agreement.
The issue is whether there was just cause for the suspension.
Position of the Employer
The Municipality asserts that the suspension was for just cause. It maintains that the Grievant’s attendance record during a three month review period demonstrates a pattern of sick leave abuse, contrary to the policy. It submits that in view of his prior record, a one day suspension was appropriate.
It asserts that while the job is a physical one, the same can be said of the other jobs in the Department, and there is no indication other employees are unable to maintain regular attendance. It contends that an employee is not free to use sick time in any way he chooses merely because he does not exceed his sick leave allotment.
It regards the Union’s evidence as insufficient to establish that any of the absences addressed by the suspension were due to Grievant’s on-the-job back injury (noting that the only physician’s statements provided were dated in May 2002), or for AA meetings, which were available after his regular shift. It notes the absence of documentation or corroboration in this regard. On the assumption that some absences were for AA meetings, it questions why the Grievant did not return to work after the meetings. Thus it reasons that Grievant failed to demonstrate a reasonable excuse for most of the absences at issue in this case.
It compares the Grievant with John McClintock and Raymond Rall, who used much less sick time during 2000-2002, and concludes that Grievant’ usage of sick time was excessive.
It regards the Union’s testimony about bargaining proposals for greater requirements for doctors’ certificates as irrelevant. Likewise, it considers the Union’s evidence about requests during the grievance procedure for documentation regarding the absences as misplaced, in that an employee should not be permitted to use Article 13 as a shield to avoid proving his own claims.
It points out that there is no claim that the sick leave policy is unreasonable, or that it was selectively enforced.
It asks that the grievance be denied.
Position of the Union
The Union points out that the Grievant only once had an absence of more than three days, and that he provided a medical certificate in connection therewith, and that he never exceeded his allotted sick leave time.
The Union cites Article 13 Subsection 1(D) of the agreement, and argues that in providing the Grievant the “opportunity” to provide medical certificates covering absences of less than three days, it effectively required medical documentation in situations beyond those covered by Subsection 1(D), despite the Employer’s unsuccessful attempt to negotiate such a requirement into the current agreement. It characterizes the Municipality’s action as an “end run” around Subsection 1(D), and an attempt to gain through arbitration what it was unable to obtain at the bargaining table.
It maintains that the Employer has the burden of demonstrating just cause and that here it has failed to sustain that burden. It faults the Municipality for requiring the Grievant to produce medical substantiation of his absences, particularly since it had never done so in the past and had given no warning that it intended to do so. It insists that Article 13 Subsection 1(D) amounts to a specific contractual prohibition against the Employer requiring proof of claims of illness except where the illness exceeds three consecutive days. It further contends that there is no showing that the Grievant’s use of sick leave was excessive in that other employees used more sick leave, and two former line maintenance employees testified that they used more sick leave when in that job than in their current, less physically demanding positions.
It asks that the grievance be sustained and that the suspension be voided and the Grievant made whole, and that the Employer directed to cease and desist from requiring medical certification for sick leave usage not in excess of three days.
Analysis and Conclusions
The collective bargaining agreement references the Employer’s Rules and Regulations, so that in this case, interpreting or applying the collective bargaining agreement amounts to interpreting or applying the Municipality’s Administrative Code.
The Administrative Code prohibits abuse of sick leave: “sick leave is only to be used when employees are suffering from such sickness or injury which prevents them from performing their official duty.” (Section 288.13(a)) and “Employees shall not use sick leave to avoid the performance of their duties.” (Section 288.13(b)(5)). It provides “examples” of sick leave abuse, mostly involving certain patterns of sick leave usage. By labeling these patterns as examples, the Code recognizes that the determination of whether an employee is abusing sick leave cannot be reduced to a simple matter of counting. Patterns of sick leave usage may indicate or suggest that the employee is abusing sick leave, but they do not conclusively establish such abuse. For example, an employee may have an oncology treatment each Monday for many weeks. While merely examining attendance records would strongly suggest abuse of sick leave, no one would say that such an employee is guilty of sick leave abuse. Examining an employee’s attendance pattern is only the beginning, and not the end, of the inquiry as to whether the employee has abused his or her sick leave.
The Employer’s request for any documentation regarding the Grievant’s absences during the pertinent time period is an implicit recognition of the notion just expressed that the issue involves not only tabulating the absences but also examining why the employee was absent. Contrary to the Union, I find nothing improper in the Municipality’s request for any documents that would substantiate the Grievant’s explanation of his absences. In this regard, the Union misconstrues the relationship between Article 13 Subsections 1(C) and 1(D).
Subsection 1(D) states that an employee may be required to provide a physician’s certificate for an absence of longer than three consecutive days. Under this subsection, the doctor’s statement is a precondition to receiving sick leave for the time involved. If the employee fails to provide the certificate, the Municipality may refuse to grant sick leave for the day(s) at issue, and instead require the employee to allocate the time to vacation, personal days or unpaid leave. But the question of whether an employee is entitled to sick leave payment is a different one from whether the employee is engaged in abuse of paid sick time.
Subsection 1(C) explicitly recognizes Management’s right to discipline an employee for sick leave abuse, as specified in the Municipality’s Rules and Regulations (that is, the Administrative Code). Normally, the determination of whether an employee has abused sick leave can only be made after the fact. And usually there is little significance in the fact that an employee reports off sick on a particular day, such as a given Monday. It is only when the employee regularly uses sick leave on Mondays that suspicion arises that the employee is involved in something untoward. By that time, however, the sick leave has already been paid, and the issue is not whether sick leave should be granted, but whether the employee is subject to discipline. As noted earlier, a pattern of sick leave usage does not conclusively establish abuse, and the Employer must decide whether to accept the employee’s claim that, despite the pattern, his or her use of sick leave was in fact legitimate. In such an instance, the existence of documentation would tend to support the employee’s claim, and it is entirely appropriate for the Employer to ask whether such documentation exists. The absence of such documentation does not tend to condemn; it simply fails to help exonerate the employee. Thus I find no violation of the collective bargaining agreement in the Municipality’s request for any documentation supporting the Grievant’s position.5
Whether or not documentation exists, the underlying question is still the same: did the Grievant in fact abuse his sick leave?
As stated above, a single day of sick leave is of little significance, and a possible pattern of sick leave abuse must be assessed over a period of time. But if the time period examined is too short, any “pattern” that appears may be too ambiguous to be reliable. Even if taking 12 Mondays off in 12 months would indicate sick leave abuse, taking three Mondays off in three months is more equivocal. This is simply an application of the statistical principle that the smaller the sample, the less reliable are the conclusions that can be drawn. It seems to me problematical to base a finding of sick leave abuse, as the Municipality does, on five “pattern” absences in a relatively short three month period. I note that over the last three calendar months of the year 2002, Grievant had no “pattern” absences. Thus the Grievant’s attendance record would appear more favorable if viewed over a longer time frame.6
There are additional problems in the Employer’s methodology. When Grievant was issued his June 6, 2002 written warning, he was told that he would be reviewed every three months (although the warning itself says six months). The Municipality treated the three month period as beginning June 18, 2002.7 But if the three month period began June 18, it should have ended September 17, and the final “pattern” absence on September 18 should not have been counted. Thus Grievant P__ should have been assessed only four, rather than five, “pattern” absences during the three months. I note also that P__ took vacation days on Monday and Tuesday during the week, so that he had only a three day workweek that week. In a three day week, absence on either the first or last day of the workweek would be treated as a “pattern” absence and only the middle day of the week would not be treated as a “pattern”absence.8
Similarly, another of the “pattern” absences counted by the Municipality was July 1. That week, July 4 was a Thursday. Thus only an absence on Tuesday of that week would not be counted as a “pattern” absence. The point in this regard is that in weeks where almost any day absent would be counted as a “pattern” day, the significance of the pattern becomes more difficult to assess.
Thus of the five “pattern” absences counted by the Employer in a three month period, one was actually outside the period, and this as well as another absence occurred in weeks where nearly any absence would be counted as a pattern absence.
There is also an apples-and-oranges aspect to the Municipality’s tabulation of the pattern absences. The two absences discussed above were both full day absences. The three remaining absences were treated as “pattern” absences for a different reason, namely that they involved sick leave of less than a full day, what I would term as a partial day absence. Whatever inference of sick leave abuse that may be drawn from the fact that an employee has utilized a substantial number of sick days, all falling into the same pattern, the same inference is less valid where many of the absences do not fit a particular pattern, even though some seem to fit a different pattern of possible sick leave abuse. To state it otherwise, two absences on the first work day, and three partial day absences do not carry the same weight as would five Monday absences.
Further, examination of the attendance record reveals that one partial day absence (Wednesday August 28) preceded a full day absence the following day. This particular pattern suggests, if anything, that the employee became sick while at work, remained off the following day (Thursday) and returned to work on Friday. At least in this case, the way in which the sick leave was taken does not indicate an employee abusing sick leave.
Grievant P__ testified that about five of the partial day absences he incurred in 2002 (half his total partial day absences for the year) were occasioned by attendance at AA meetings. The Municipality does not contend that it is inappropriate to apply sick leave to the time spent attending AA meetings, and that vacation or personal leave must be used in such cases. Indeed, the Employer’s request for documentation indicates that it would consider use of sick leave to attend AA meetings as legitimate rather than abusive. Unfortunately, no documentation exists, and P__ cannot determine whether he attended an AA meeting on any specific day when he used less than eight hours sick leave. But it seems reasonable to posit that at least one of the three partial day absences during the time frame being examined involved attendance at an AA meeting. Thus of the three partial day absences at issue in this case, at least one, and quite possibly two, seem to involve proper use of sick leave.
In summary, in view of the brief period examined by the Employer in concluding that Grievant P__ engaged in sick leave abuse based on five instances of sick leave usage, the conclusion seems a tenuous one. Of the five instances, one was actually outside the three month period chosen by the Employer to gauge the Grievant. The remaining four absences do not fit a particular pattern, and an inference of abuse is harder to support if it depends on combining different patterns of possible abuse. Of the three partial sick days taken by the Grievant, at least one and perhaps two would appear to involve legitimate applications of sick leave.
Based on the above, I conclude that the evidence is insufficient to demonstrate that the Grievant was guilty of sick leave abuse, and I therefore sustain the grievance.
Matthew M. Franckiewicz, Arbitrator
September 25, 2003
The grievance is sustained. The suspension is revoked, and the Municipality shall remove all references to it from the Grievant’s personnel records and make him whole for any loss of income occasioned by the suspension.
1. The typed date on the warning is February 8, but the handwritten date next to the signature is February 9.
2 The handwritten date is difficult to read, but appears to be June 12, 2002.
3. According to Schaffer, P__ requested unpaid leave for a four day absence because he lacked the medical excuse as required by the agreement. P__ stated, however that he did have a medical excuse, and provided a copy of it at the hearing. In any event, no sick leave was charged for the four days involved. P__’s other unpaid absence, in January 2002, was to enter a detoxification program.
4. P__ provided a chiropractor’s statement that he treated P__ on May 28.
5. Cases such as Rock Island Arsenal, 76 LA (BNA) 441 (Garman, 1981) and Bethlehem Steel Co., 42 LA (BNA) 851 (Hill, 1964), relied upon by the Union, do not suggest a contrary result. Both involve whether the grievants were entitled to claim sick leave for the absences at issue despite the lack of documentation, rather than whether abuse of sick leave should be inferred from the grievants overall attendance records. It should be noted in this context that the fact that an employee has available sick leave credit in his account does not preclude discipline for improperly using that sick leave. Sick leave is intended to cover time off due to illness, injury or medical treatment, and is not equivalent to personal vacation days. This conclusion is inescapable from the fact that the collective bargaining agreement provides separately for personal leave and sick leave.
6. Of course, it could also be posited that the imposition of discipline in September itself prompted better attendance in October through December.
7. See the September 19, 2002 warning letter referred to in the suspension letter.
8. The Grievant had approximately 19 days of vacation eligibility under Article 6 Section 2 of the agreement. As of September 18 he had used 10 of those days, so that he had not exhausted his vacation by the time he used a sick leave day on September 18.