United States Penitentiary
American Federation of Government Employees
118 LA (BNA) 1324
FMCS Case No. 02/16571
July 31, 2003
Geoffrey L. Pratte, Arbitrator, selected by parties through procedures of the Federal Mediation and Conciliation Service
By his grievance filed on or about July 23, 2002, the Grievant complained that he had been ordered to bring in a doctor’s certification upon return to work from sick leave of only two days, and he further complained that the Agency had refused to pay the doctor bill which he had incurred in carrying out this order.
Among the provisions of the Master Agreement which particularly relevant to this dispute are the following:
Article 3—Governing Regulations
Section a. Both parties mutually agree that this Agreement takes precedence over any Bureau policy, procedure, and/or regulation which is not derived from higher government-wide laws, rules, and regulations.
Article 6—Rights of the Employee
Section b. The parties agree that there will be no restraint, harassment, intimidation, reprisal, or any coercion against any employee in the exercise of any employee rights provided for in this Agreement and any other applicable laws, rules, and regulations, including the right:
2. to be treated fairly and equitably in all aspects of personnel management;
Article 20—Sick Leave
Section a. Employees will accrue and be granted sick leave in accordance with applicable regulations, including:
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. . . .
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.
Article 42—Effective Date and Duration of This Agreement
Section b. This Agreement will be in full force and effective for three (3) years from the effective date, but may be extended in one (1) year increments thereafter by mutual consent of the parties. Written notice may be given by either party to the other not less than sixty (60) days but not more than ninety (90) days prior to the expiration date that it desires to amend the Agreement. In the event notice is given, the parties will begin negotiating within thirty (30) days. If negotiations are not completed by the expiration date, the Agreement will be automatically extended until a new Agreement is mutually agreed upon/approved.
In addition, the following Code of Federal Regulations, revised as of January 1, 2002, is relevant to this dispute:
§630.403 Supporting evidence.
(a) An agency may grant sick leave only when supported by administratively acceptable evidence. Regardless of the duration of the absence, an agency may consider an employee’s certification as to the reason for his or her absence as administratively acceptable evidence. For an absence in excess of 3 workdays, or for a lesser period when determined necessary, the agency may also require a medical certificate or other administratively acceptable evidence as to the reason for an absence for any of the purposes described in §630.401(a).
(b) An agency may establish a uniformly applied policy that requires employees to provide administratively acceptable evidence or medical certification for a request for sick leave within a specified time period. An employee who does not provide the required evidence or medical certification within the specified time period is not entitled to sick leave.
The parties each had a different version of an issue for this grievance. The Arbitrator will phrase the issue as follows: Did the company violate the Master Agreement by requiring the Grievant to supply medical certification for two days of sick leave, and if it did violate the Master Agreement, was this violation excused by application of Federal Regulations? If the Master Agreement was violated, and the violation not excused by Federal Regulation, what should be remedy be?
The Grievant is a senior corrections officer at the Agency’s prison at Marion, Illinois, and at the time of this hearing had been employed over nineteen years at the prison. He evidently has a good record.
The Agency had sent letters to close to forty employees on July 1, 2002 indicating an unacceptable use of sick leave and requiring, for at least the next ninety days, that any of these employees, in order to have sick leave approved, must submit a written doctor’s statement containing specified information. The Grievant, however, was not one of these employees. The Warden, Earnest Stepp, had rescinded these letters later because he had become concerned that an adequate investigation had not been conducted with respect to some of the recipients. He noted, however, that a lot of sick leave was taken by employees there, more than at any of the other seven prisons where he had served.
The Grievant took his regularly scheduled days off on Wednesday and Thursday, July 10 and 11, 2002. Before his shift began on Friday, July 12, he called in a little after noon and spoke with Lt. Bludworth, informing him that he was suffering back spasms; had called his doctor, who had treated this before for him; and that the doctor told him to take off two days and that he would phone in a prescription for the Grievant.
Lt. Bludworth, who had been with the Agency twelve years, was responsible for handling the roster of employees that day. He believed it to be unusual for a doctor to make a diagnosis over the phone. While Bludworth was on the phone, Captain Donald Hudson entered the office, and Bludworth quickly ran the situation by him, using body language which Hudson took to be questioning. Hudson instructed Bludworth to have the Grievant bring in a doctor’s slip because he too thought it odd that a doctor would tell someone over the phone to take two days off. Bludworth did not order the Grievant explicitly to see the doctor.
The Grievant, who lives in Metropolis, Illinois, called his doctor in Paducah, Kentucky about the slip. The doctor told him he had been having problems with another agency over giving out slips without having seen the patient and told the Grievant he would have to come in and see the doctor in order to get a slip. The Grievant was able to go in that day. His doctor gave him a billing for a follow-up office visit for $75.00, a slip saying he was unable to work on July 12 and 13, and a medical certification form stating essentially the same thing.
The Grievant returned on July 14. When he presented the documentation to Captain Hudson on July 15 he asked that the Agency pay his bill; Hudson said “no.” The Grievant left the office, and the two did not speak any more about the matter. About one week later he filed his grievance, asking that the Agency pay his doctor’s bill of $75.00, his mileage for thirty miles, two hours of overtime for his travel and examination, and that the Agency in the future abide by the Agreement.
As it turned out, the Grievant ended up having to pay only a co-pay of $15.00 because of his insurance coverage. Because his wife handled insurance matters, he was evidently unaware of this until the hearing.
Bludworth completed a routine memo on the matter and scheduled another employee for overtime to handle the Grievant’s assignment. The roster for July 13 showed the Grievant as being on sick leave. On July 12 the roster showed ten employees on personal sick leave and two others out because of sick family members, a number which Bludworth believed to be unusual, but nevertheless an entitlement under the Agreement.
A special form to request a leave, called an SF-71, is put into an employee’s “mailbox” by a Time and Attendance (T&A) clerk. It is the responsibility of the employee to complete the form, make sure it is accurate, and sign it. Such a form, filled out by Greg Dunning, who had returned to assignment about a week before as a T&A clerk (he had done this before in 1995), was put into the Grievant’s box for July 11, showing eight hours of sick leave. The Grievant signed it and returned it. It is unknown if there was another form for July 12—the Agency presented only the form for July 11. The Grievant had paid little attention to the SF-71 for July 11 and said these forms were often filled out by the clerks, a statement agreed to by Captain Hudson. Dunning said he may have made a mistake and had amended SF-71 forms before. During his earlier assignment he had made out these forms day by day rather than include several days on one form. He had received no training on a new system when he was reassigned as a T&A clerk in the summer of 2002. He believed an error could have been made because this occurred on a weekend when he might not have had a signed roster to go by and used the computer screen, which at times differed from the signed roster.
At any rate, the Grievant’s completed T&A sheet for the two weeks covering the days in question listed the Grievant as having used only eight hours of sick leave instead of sixteen. This had not been corrected as of the time of the hearing, meaning that the Grievant’s “bank” of available sick leave days was eight hours higher than it should have been. Presumably this will be corrected by the parties themselves.
Hudson said he had never made a similar request before, and Bludworth could not recall telling any other corrections officer to bring in documentation if the sick leave requested was under three days. Hudson admitted that if the doctor did know of the Grievant’s condition from past treatment he might diagnose and prescribe over the phone. Bludworth had not told him the detail about the doctor having seen the Grievant before about the same problem.
Mr. Gene Beasley, a Human Relations Specialist for the Agency, had typed the Agency’s response to the grievance. He indicated that the Phoenix branch of the Agency had provided information to the effect there was no authorization for the Agency to reimburse the Grievant for his medical bills. Mrs. Elizabeth Eskew, the Agency’s Human Resources Manager for this prison, had drafted the Agency’s response and had checked on the matter of reimbursement. She was told by a labor relations specialist that there was no regulation which allowed the Agency to pay the Grievant’s bill. She was not aware of any policy which allowed such reimbursement, although she said the Agency could do so by means of a settlement.
She claimed there was such a settlement involving Kellie Huckleberry recently. This employee suffered a kidney stone attack on April 21, 2002. She had wanted to go home to get medicine she had there, since she was already under a doctor’s care. According to Eskew, a nurse at the prison advised she should go to a hospital because she was doubled up in pain; they had a staff person take her to the hospital. The bill was between two and three thousand dollars, and Mr. Huckleberry (who is also an employee at the facility but who was not at work the day his wife became ill) said the uninsured portion was $295.00 or so. He asked the Agency to pay, but it initially refused, saying it was the responsibility of the Huckleberrys.
Mr. Huckleberry later consulted with David Berkebile, who became the Associate Warden in November, David Berkebile, who 2002. According to Berkebile, Mr. Huckleberry showed him something about a claim in court against him for the unpaid balance and said there would be legal costs if the bill were not paid. Berkebile believed it to be ethically sound but not a legal duty on the part of the Agency and had the bill paid. He did not view his action as setting any precedent.
Eskew noted the Agency might have had a possible liability because it had sent Mrs. Huckleberry to the hospital. She believed the payment of that bill was entirely different from that behind this grievance, where the Grievant had simply been requested to bring in a doctor’s slip. She said they had then consulted with the Union and agreed that in the future if an employee were to become ill at work they would permit the option of having someone pick the employee up to take home.
Eskew said federal regulations cited by the Union and dealing with required examinations for fitness for duty, in which case the Agency did pay the bill, involved situations such as initial hiring, return from extended leave, medical uncertainty about ability to do work, etc. For such an examination the Agency sent a letter to the employee directing him to go on a specific day to a specific doctor. In contrast, federal regulations cited by the Agency dealt with normal sick leave, such as the case of the Grievant; these regulations allowed the Agency to ask for documentation and did not limit this only to cases involving more than three days.
In her response to the grievance, Eskew admitted the Agency had violated the Agreement by requiring the doctor’s slip, and she indicated the Agency would provide training on this matter. At the hearing she stated her belief that federal regulations were above the Agreement, which could not conflict with law. She admitted, however, that she knew of no law which stated the Agency could not pay.
The Union’s arguments may be summarized as follows:
1. The Agency did recently reimburse an employee for medical bills incurred when the Agency ordered that employee to go to the hospital.
2. The Grievant’s request for sick leave was normal, and he followed the correct procedure.
3. The Agency required the Grievant to bring in a doctor’s slip, even though this is not required for a two-day sick leave.
4. “Administratively acceptable evidence” required by 5 C.F.R. 630.403(a) to support a request for sick leave is broader than “medical certification” and in 5 C.F.R. 630.403(b) is an alternative to medical certification.
5. The Agency admitted that Standard Form 71, Application for Leave, is one form of administratively acceptable evidence.
6. The Grievant was not among employees who were regarded as abusing sick leave.
7. The Agency’s right to require a physical examination is not absolute; the Agreement sets out appropriate arrangements for medical certification for sick leave, and the Agency has violated the Agreement.
8. The grievance should be sustained and the Grievant made whole by reimbursement of $15.00 for his co-pay to the doctor; payment of $69.48 for two hours overtime used in seeing the doctor; and payment of $10.95 for mileage. Additionally, the Agency should reimburse the Union for its costs in arbitrating this matter, post a notice that it will not subject Bargaining Unit members to unreasonable demands regarding sick leave, and permit a Union representative to attend all training sessions given to supervisors on matters pertaining to sick leave.
The Agency’s arguments may be summarized as follows:
1. The Agency admits the Agreement should have kept it from having the Grievant bring in documentation for sick leave under three days.
2. By statute, however, the Agency may require administratively acceptable evidence, regardless of the duration, and the Agreement cannot override the statute; the Agreement itself recognizes this.
3. The single case where the Agency did pay medical expenses of an employee whom it had required to go to a hospital is markedly different and does not set a precedent:
A. Here the Grievant was not on duty.
B. Here the Grievant had been diagnosed telephonically by his doctor; in the other case the employee had been examined by a nurse on the Agency’s staff.
C. Here the Grievant was merely asked to bring in a doctor’s slip, not taken by the Agency to a hospital.
4. The Agency did not violate 5 C.F.R. 339 which addresses examinations for fitness for duty.
5. There was no evidence at all concerning issues about the Privacy Act.
6. The Union has failed in its burden of proof that the Agency violated the Agreement or any law.
7. The Grievant is not entitled to overtime under the Back Pay Act.
8. The Grievant’s out-of-pocket expenses are trivial, and there is no authority for the Agency to pay those expenses absent an order for a fitness for duty examination.
9. The grievance should be denied.
The Agency has admitted it breached the contract by requiring the Grievant to bring in a doctor’s certificate for a sick leave of only two days. It claims, however, that the grievance should be denied because: (1) there is no explicit provision for payment by the Agency; and (2) federal regulations, specifically 5 C.F.R. 630.403(a), permit the Agency to require a medical certificate for sick leave of even less than three workdays.
If the second point is true, no need would exist to examine the first point. Resolution of the second point involves the interplay of the contract with external federal law, i.e., the contract seems to say one thing in Article 20(b)—no medical certification is needed for sick leave of three days or less—and the federal regulation says another thing—the Agency may require medical certification for leave of less than three days.
Were this a private sector arbitration, arbitrators have held variously: (1) that the arbitrator should respect the agreement and ignore the law, the view espoused by Arbitrator Bernard Mettzer; (2) that the arbitrator must consider both the language of the contract and the law, the view championed by Arbitrator Robert Howlett; (3) that the arbitrator should look to external law to make sure his award does not require the parties to do something the law forbids, the position developed by Archibald Cox and Arbitrator Richard Mittenthal. See Hill and Sinicropi, Remedies in Arbitration (1981), pp. 208-225; Elkouri and Elkouri, How Arbitration Works, 5th Ed., (1997), pp. 525-534. The situation is different here, because it involves the federal sector, where arbitrators are required to deal with external law by the Civil Service Reform Act of 1978, 5 U.S.C. §7122(a). Consequently, arbitral awards that conflict with government-wide regulations are not enforceable. Department of the Army, Ft. Campbell, 37 FLRA 186 (1990). An arbitrator’s award in a grievance arising from the federal sector should be consistent with appropriate regulations. Frazier, “Labor Arbitration in the Federal Service,” 45 Geo. Wash. L. Rev. 712 (1977).
On the other hand, 5 U.S.C. §7116(a) (7) forbids an agency from enforcing a regulation which is in conflict with an applicable collective bargaining agreement if the agreement was in effect before the regulation was prescribed. Additionally, if the arbitrator is required to consider federal regulations, it would seem appropriate that he interpret them. Department of Defense Dependents Sch., 4 FLRA 412 (1980). This was done by Arbitrator Clarke in Warner Robins Air Logistics Ctr., 92 LA 301 (1988).
The copy of 5 C.F.R. §630.403 supplied by the Agency indicates that the source of this section is “65 FR 37240, June 13, 2000.” Preceding sections 630.401 and 630.402 bear the initial date of December 2, 1994, with Section 630.401 having subsequently been amended several times, the last time being June 13, 2000. Section 630.405 has the initial date of December 2, 1994, with an amendment on June 13, 2000. Based on this it appears that the particular section relied on by the Agency came into existence after the effective date of the Agreement, which is March 9, 1998. Under 5 U.S.C. §7116(a) (7) such reliance is not permitted.
[The Agreement was to last until March 2, 2001, but under Article 42(b) it could be extended in one year increments by mutual consent. The parties did not cover this with the Arbitrator, leaving him to believe the Agreement has simply been extended by mutual agreement. In that case he cannot view it as a “new” contract coming into effect on March 9, 2001, and again on March 9, 2002.]
A more substantive problem exists, however, with the Agency’s position. Even if Section 430.403 were effective at the time the Master Agreement had been signed, the section does not permit a supervisor to exercise unlimited power in requiring a medical certificate for sick leave under three workdays. The third sentence of subparagraph (a) contains the wording “when determined necessary.” Although the Agency involved, through its appropriate supervisor, is to make the determination of necessity, it must exercise its discretion in a reasonable, and not unbridled, manner. The wording provides for an exception to the three-day rule; if the exception could be used at any time for any whim, there would be no need for it. The power to invoke the exception should not be abused.
Here the Grievant was clearly not one of the individuals who had been identified as possibly abusing sick leave. There is no indication his record, covering nineteen years, was poor in other respects. Although the request for sick leave in connection with days off can be suspicious initially, the Grievant explained to Bludworth he had consulted with his doctor over the phone and that this doctor was familiar with his problem with his back and had treated him before for this.
Both Hudson and Bludworth candidly admitted this was the first time they had required medical certification for such a short period; and Hudson agreed that the doctor’s diagnosis over the phone would not be strange if he had treated the Grievant in the past for the same problem. The Arbitrator believes, from all the circumstances, that the Agency abused its discretion in determining that medical certification was truly necessary on that occasion for this Grievant. (He must also point out he does not believe Hudson and Bludworth acted maliciously.) Accordingly, even if 5 C.F.R. 630.403 were controlling here (which the Arbitrator does not hold), it was applied improperly.
The Arbitrator cannot agree with the Union that 5 C.F.R. 339.104 et seq. are applicable here. Those sections apply to situations where the Agency is considering an application for employment, or where an employee who has been off work for a substantial period of time is being considered for reemployment, or for certain other defined instances. They do not apply to routine sick leaves; additionally those sections set out certain required procedures, such as written notice and designation of the examining physician. Clearly they are not relevant here.
Having found that the Agency violated the Agreement, which it has admitted, and that it cannot shield its action by reliance on the federal regulation involved, the remaining issue is the appropriate remedy.
The normal aim of arbitration once a grievant has been found to have sustained economic injury due to a company’s breach of the agreement is to make the employee whole. It is not to enrich him or to “punish” the company beyond what is necessary to make the grievant whole.
Here the Grievant actually lost $15.00, because his insurance covered the remaining portion of his doctor bill. Being required to obtain the doctor’s certification also meant he had to travel there, a round trip of thirty miles. He also seeks overtime pay for two hours, that the Agency pay for the Union’s costs in this arbitration, and other relief in the form of a mandate by the Arbitrator.
The Grievant did not evidently incur any attorney fees here nor did the Union. Accordingly, under 5 U.S.C. §7701(g) the Arbitrator obviously cannot make any award of attorney fees or, he believes, of costs. As for overtime pay, such an award would not be appropriate; the Grievant was not working at the time, and, therefore, the Arbitrator cannot find that “but for” the Agency’s violation, he would have received overtime. Naval Air Rework Facility, Norwalk, 21 F.L.R.A. 410 [1986 FLRA Lexis 505, 21 FLRA No. 55] (1986). As for the request by the Union that certain postings be ordered and that the Arbitrator mandate that a Union representative attend training for supervisors, these are simply not appropriate here nor are they arguable within the Arbitrator’s power.
The Arbitrator is aware of one case in which another arbitrator’s award of additional commuting expenses was subsequently disallowed in a proceeding under the Federal Labor Relations Authority as being in violation of the Federal Back Pay Act. U.S. Customs Serv., 23 F.L.R.A. 366 [1986 FLRA Lexis 197, 23 FLRA No. 51] (1986). The Arbitrator does not have access to the actual decision there, but, nevertheless, believes there is a difference between commuting expenses (few people are lucky enough to have those paid by their employers) and an improperly required doctor’s visit. The Arbitrator finds it proper to have the Agency reimburse the Grievant for his mileage at the rate of .36½ per mile for thirty miles.
Although there may not be any specific statute, regulation, or rule permitting the Agency to pay the Grievant’s actual medical bill, the Agency admits it could find nothing precluding it. It is recognized that arbitrators have the inherent power to award monetary damages to make a grievant whole, otherwise, what would be the point of most labor arbitrations. The parties have empowered the Arbitrator to settle their dispute, and an appropriate remedy is part of that authority. Few labor-management contracts specifically authorize an arbitrator to award monetary damages, and yet arbitrators have done just that in hundreds of cases year after year for half a century and more. Jeffrey Mfg. Co., 34 LA (BNA) 814, 825 (Kuhn, 1960).
Having found, for the reasons given above, that the Agency violated Article 20(b) of the Master Agreement, the grievance is sustained insofar as the Agency is ordered to reimburse the Grievant for $15.00 of his actual expenses for the doctor visit to obtain the medical certification, and $10.95 for his mileage for the visit. All other relief sought by the Union is denied. Interest on the monetary award shall be in accordance with the procedures set out in 5 U.S.C. §5596(b).