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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
and
American
Federation of Government Employees
Local 1917
119 LA (BNA) 833
March 11, 2004
Kinard Lang, Arbitrator:
Issue
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?
Background
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
Union
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.
Conclusions
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.
Award
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.