Arbitration Award
|
In re
United States
Penitentiary
Marion, Illinois
and
American Federation of
Government Employees
Local 2343
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
Grievance
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.
Issue
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.
Discussion
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).