Arbitration Award


Summary: Arbitrator holds that a pregnant employee who was absent from work for six days due to abnormal pain and bleeding, was entitled to leave without pay under FMLA, where she submitted doctor's letter substantiating her condition on the first day she returned. Her need for leave was a medical emergency. 



In re

Department of Homeland Security


American Federation of Government Employees

Local 1917


119 LA (BNA) 833


March 11, 2004

Kinard Lang, Arbitrator: 




Do applicable Federal Regulations require that Immigration Information Officer Carla Martino's absence front duty Monday, November 4, 2002 through Friday, November 8, 2002, be retroactively converted front Absence Without Leave, to Leave Without Pay? 




This matter comes to us as the result of the following facts, most of which are uncontested by the parties: 


1) The Grievant suffered a miscarriage early in 2002. 


2) When she again became pregnant, with an expected delivery date in April 2003, her doctor's October 22, 2002 letter recommended: 


“... no more than 40 hours of work a week, 8 hours a day; also no lifting over 20 lbs, or prolonged standing.” 


3) In a letter dated November 7, 2002, that same doctor reports examining the Grievant that date, as follows: 


“PT. was seeing for an emergency appointment. PT. requires bed rest front 11-8-02 till 11-15-02, due to abnormal abdominal pain and abnormal bleeding” 


4) According to the Agency's Step II response, the Grievant was:  


“... in violation of (Article 36) because site did not call to request leave until Wednesday, November 6, 2002, after being absent since Monday, November 4, 2002. When she did call. she was informed that she did not have sick leave to cover her absence, and Supervisor Lopez informed her of her rights under the Family, and Medical Leave Act (FMLA). IIO Martino said she would send her sister in the next day, with a request for LWOP under FMLA, but then called and said her sister could not come after all. IIO Martino returned to duty on November 12, 2002, with medical documentation to support her absence, but she did not submit any request for LWOP. A request for leave under the FMLA should be made 30 days in advance, and one cannot retroactively invoke entitlement unless they can present documentation to support physical or mental incapacity.” 


5) The Union processed the cited grievance to Step III, where the Agency's response was essentially the same as at Step II, continued to classify the Grievant's absence as AWOL, and resulted in this Arbitration. 


Positions of the Parties 




We are told that the Grievant experienced the “serious health condition” contemplated in FMLA; therefore, the Agency should have converted the asserted AWOL to LWOP. 


That is so because paragraph 48(c) of the Agency's time and leave regulations says: 


“Absences initially charged as AWOL may, subsequently, be charged to an approved leave category, i.e., annual or sick leave or leave without pay, etc., when: 


1) The employee submits the required supporting evidence within the time prescribed by the approving official. 


2) The approving official determines that the employee has a satisfactory reason for not obtaining approval for the absence or not notifying his or her supervisor of the reason for the absence in a timely manner.”  


According to the Union, when paragraph 48 (c) says “... annual or sick leave or leave without pay, etc. . . .”, the “etc.” includes FMLA, and the letter, as well as the intent, of that legislation establishes that the Grievant provided the reasons for her absence “... in timely manner”. 


Hence, the designation of her absence as AWOL is unwarranted, and must be converted to generic LWOP, and FMLA belongs to that generic. 


Homeland Security   


The Agency says the union has the “burden of proof” in this matter; in order to prevail it must prove a violation of Agreement Article 36(B), because at each step of the grievance procedure that is what it claims. Nowhere in its processing of this grievance, prior to arbitration, did it assert its untimely FMLA argument, and the specific provisions of Agreement Article 47E(2) bar introduction of that assertion at that late date. The cited Agreement provisions say, in pertinent part: 


“Article 36—Sick Leave 

B. Normally, an employee must call in each day to request leave during an illness or emergency. This does not preclude an employee from requesting more than one day, if he knows in advance that he will need more than one day. If the supervisor approves this block of leave, the employee need not call in every day of the block of time approved.” (Emphasis added). 


“Article 47—Grievance Procedure 

E. Procedures For Grievances Filed By Employees: 

(2) Second Step. . . . 

The employee shall set forth in precise terms exactly what his or her grievance is; all the facts relating thereto, including the names of any individuals against whom the grievance is made; the Article and Section of the Agreement which is in dispute; the reason for his or her dissatisfaction, and the corrective action desired ...”  


Additionally, the Agency says the Grievant is not covered under the provisions of 29 C.F.R. 825. 303(b), relied on by the Union, because 29 C.F.R. 825. 800—Definitions, says: 


“Eligible employee means:


Page 835(4) Excludes any Federal officer or employee covered under subchapter V of Chapter 63 of title 5, United States Code ...” 


The Agency contrasts the FMLA implementing regulations for non-federal employees (C.F.R. 825. 303), with those for federal employees (5 C.F.R. part 630, subpart L), and argues that the Grievant failed to comply with the regulations applicable to federal employees, when she failed to request FMLA prior to the instant absences from duty. 


We are told the Union's reliance on an unproven violation of the Agreement's “Sick Leave” provisions bars arbitral consideration of FMLA applicability to this dispute, and that were FMLA applied, the grievance would still fail, because of the Grievant's failure to comply with FMLA “notification” requirements. 


Discussion and Analysis 


First, we must address the Agency's arguments with respect to the Union's asserted failure to comply with the Agreement's “specificity” requirements regarding why it is “aggrieved”. Generally, arbitrators are loath to treat a Step I grievance as if it were a formal “pleading”, in a court of law; thereby barring future arguments related to “causes of action” not initially asserted. Here, the grievance was not prepared by a rank and file Union member, whose lack of clarity and precision could easily be overlooked, permitting the assertion of a FMLA argument at Step 11, or later, when it was not made at Step 1. To the contrary, the Union President initiated and pursued the instant grievance, and he must be held to a higher standard of fidelity to Article 47. 


However, the Agency asserts infidelity to FMLA as an argument against the Union, notwithstanding the Union's failure to base its grievance on FMLA. 


Simply stated, the Agency cannot have it both ways; if FMLA is a valid Step II defense for the Agency, it is equally worthy of argument by the Union at Arbitration. 


The evidence establishes that the Agency has misread the applicable provisions of the FMLA; on page one above, highlighted in the last sentence of the Agency's Step II response, we have partial FMLA extracts without attribution, which omit or ignore essential provisions. The text of the probative provisions says: 


5 C.F.R. 630.1206 Notice of leave 

(a) If leave taken under Sec. 630.1203(a) of this part is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment, the employee shall provide notice to the agency of his or her intention to take leave not less than 30 calendar days before the date the leave is to begin. If the date of the birth or placement or planned medical treatment requires leave to begin within 30 calendar days, the employee shall provide such notice as is practicable.” 


There is no evidence that the Grievant's absence from November 8th-11th 2002 was “foreseeable”, in the sense conveyed within the context of subsection (a), above. Next, we have: 


“(c) If the need for leave is not foreseeable—e.g., a medical emergency or the unexpected ...and the employee cannot provide 30 calendar days' notice of his or her need far leave, the employee shall provide notice within a reasonable period of time appropriate to the circumstances involved. If necessary, notice may be given by an employee's personal representative (e.g., a family member or other responsible party). If the need for leave is not foreseeable and the employee is unable, due to circumstances beyond his or her control, to provide notice of his or her need for leave, the leave may not be delayed or denied.”  


The evidence establishes that the Grievant's receipt of medical attention on November 7, 2002 was “... for an emergency appointment”, and the Agency's Step II response acknowledges receipt of Appendix A., upon her return to duty on November 12th; that was “... within a reasonable period of time appropriate to the circumstances involved”, particularly when we have Appendix B., a letter from that same doctor, dated October 22, 2002, placing the Grievant under work restrictions. 


Finally, with respect to the “non-retroactivity” invoked by the Agency in its Step II response, we have 5 CFR: 


Sec. 630.1203 Leave Entitlement. 

(b) An employee must invoke his or her entitlement to family and medical leave under paragraph (a) of this section, subject to the notification and medical certification requirements in Secs. 630.1206 and 630.1207. An employee may not retroactively invoke his or her entitlement to family and medical leave ...” 


The 5 C.F.R. provisions cited above, when read together, establish that the “non-retroactivity” provisions of Sec. 630.1203(b) are “subject to” the more liberal language in Section 1206(c). Furthermore, no reasonable person could find that Agency procedure “48. RECORDING AWOL.” permits the Agency to deny conversion of the Grievant's “AWOL” absences, to “LWOP,” particularly in light of 5 C.F.R. 630.1201. 




The Union's arguments with respect to 29 C.F.R. 825.303(b) are unpersuasive, because those provisions are inapplicable to the Grievant. 5 C.F.R., and the Agency's procedures for converting AWOL to LWOP are, based on all the evidence, determinative. 




The Grievance is sustained. As soon as administratively possible, Ms. Carla Martino's absences between November 8, 2002 and November 12, 2002 shall be converted from Absence Without Leave, to Leave Without Pay, under the provisions of the Family and Medical Leave Act: 5 C.F.R. Part 630, Subpart L. 


All mention of the rescinded AWOL shall be expunged from all personnel records that may be relied upon by the Agency in any future personnel actions involving Ms. Martino.