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In re
Bureau of Prisons
Oklahoma City
and
116 LA (BNA) 1170
FMCS Case No. 01/08836
January 28, 2002
Donald P. Goodman, Arbitrator*
The Union framed the issue as “Did the Agency document, publicize
and/or use the Correctional Officers reasons for unscheduled sick leave in
violation of law and the Master Agreement, and if so, what shall be the
appropriate remedy(s)?”
The Agency framed the issue as “Does management violate the Master
Agreement when it maintains sick leave usage? If so, what is an appropriate
remedy?”
Because there
was no mutual statement of the issue, the parties stipulated the Arbitrator is
to frame the issue.
A review of the grievance is appropriate and upon doing so the
grievance form in item 6 requires specificity in identifying in what way the
Agency violated the Master Agreement and/or statutes. Accordingly, the issue
is:
Did the Agency maintain and refer to Correctional Employees
request for leave and reasons thereof in violation of the references identified
in Item 5 of the grievance form? Did the Agency selectively and intentionally discriminate against said
employees when administering the Incentive Awards Program and Merit Promotion
Plan?
If the answer to either or both of these is in the affirmative,
what is the appropriate remedy?
ARTICLE 20—SICK LEAVE
Section a. Employees will accrue and be
granted sick leave in accordance with applicable regulations, including:
1. sick leave may be used when an employee
receives medical, dental, or optical examinations or treatment; is
incapacitated for the performance of duties by sickness, injury, or pregnancy
and confinement; is required to give care and attendance to a member of his/her
immediate family who is afflicted with a contagious disease (as defined by applicable
regulations); or would jeopardize the health of others by his/her presence at
his/her post of duty because of exposure to a contagious disease;
Additionally, if appropriate, sick leave
requests will be handled in accordance with the provisions of the Family
Friendly Leave Act, and the employee may also elect leave under the Family and
Medical Leave Act;
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. The
actual granting of sick leave, however, will be pursuant to a personal request
by the employee to the immediate supervisor, unless the employee is too ill or
injured to do so, for each day the employee is absent, up to three (3) days,
provided the supervisor has not approved other arrangements. If the supervisor
is unavailable, the employee will contact the next available supervisor in the
chain of command to request sick leave;
4. employees returning from sick leave will
so notify their supervisors as far in advance of the start of their shifts as
possible. In the case of an extended illness of more than three (3) days,
employees will periodically update their supervisors as to their ability to
return to work; and
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.
Section d. When required by the exigencies of
the situation and when the employee can be expected to return to duty, sick
leave, up to a total of thirty (30) days, may be advanced for disability or
ailment. Advance sick leave because of pregnancy may be granted for medical
reasons. The Chief Executive Officer may grant the advance sick leave as
requested or may modify or deny the request. Denials will be forwarded to the
employee in writing.
Section e. Upon request of the employee
concerned, sick leave records will be made available to the employee and/or the
employee's representative.
Article 31 Grievance Procedure
Section d. Grievances must be filed within
forty (40) calendar days of the date of the alleged grievable occurrence. If
needed, both parties will devote up to ten (10) days of the forty (40) to the
informal resolution process. If a party becomes aware of an alleged grievable
event more than forty (40) calendar days after its occurrence, the grievance
must be filed within forty (40) calendar days from the date the party filing
the grievance can reasonably be expected to have become aware of the
occurrence. A grievance can be filed for violations within the life of this
contract, however, where the statutes provide for a longer filing period, then
the statutory period would control.
On February 5, 2000 the Union filed the instant grievance claiming
that the agency violated:
Specifically the Union states “The Agency maintains and referred
to Correctional Employees request for leave and reasons thereof in violation of
the afore mentioned references to selectively and intentionally discriminate
against said employees when administering the Incentive Awards Program and the
Merit Promotion Plan.”
The union
asks that the Arbitrator order the Agency to:
1. Cease the use of any form to record employees request for leave
except the Standard Form 71.
2. Maintain Standard Form 71 in compliance with prescribed Privacy
Laws and Regulations.
3. Retroactively approve these employees for Incentive Awards they
were denied because of the agencies unlawful maintenance, and disclosure of
derogatory and private materials.
4. Discipline supervisors who violated the Rights of Privacy.
5. Order a posting by agency, that it will not violate the
employees Rights to Privacy, Merit Promotions, and Incentive Awards.
6. Any other remedy(s) deemed appropriate by arbitration.
It is uncontested that the Agency used a form other than SF71 in
administering leave requests. That form is attached to and is a part of this
Opinion.
Since 1996
and particularly since December 20, 1998 supervisors were instructed to
document correctional officers reasons for requesting leave and to provide a
copy of each such leave request to the office of the warden. The Union states
these actions violated the Master Agreement and resulted in unfair and
inequitable treatment of correctional officers. These actions violated the
privacy rights of employees. The Agency used these requests for leave in a
public and adverse way to effect the conditions of employment. When the
Agency disclosed the use of sick leave and the reasons therefor to others it
violated in a capricious way the privacy rights of employees.
Copies of these sick leave requests were provided the warden on a
daily basis. Apparently the warden believed there was an abuse of sick leave
resulting in overtime pay. When filling out these sick leave forms supervisors
attempted to obtain as much information as possible and even had some forms
returned for additional information.
The Agency did not have a need to know the specific reason an
employee requested unscheduled sick leave. Nor did it have a right to that
information. Article 20 Section A 3 requires only that the employee state his
inability to report for duty and the expected length of the illness. Too,
entries were made in the performance log of individuals without providing an
opportunity for the individual affected to review the entries prior to the
official use of such entries.
Request for sick leave forms were routinely filed in performance
files. These forms contained privacy matters such as medical issues, history of
sick leave usage, time and attendance matters, reports of traumatic injury,
claims for COP, etc. and were available to anyone. The leave requests were
provided the warden daily and copies were maintained by the warden who used
these records when considering officers for awards and promotions.
The only
reason the Agency would have to monitor sick leave usage would be to
discriminate against correctional officers in matters such as performance
awards and promotions.
Presumably the Agency ceased demanding the employees give detailed
information when requesting sick leave after the grievance was filed but by
then the damage had been done. Sick leave usage had already penalized employees
when the Agency denied promotions and awards because of such usage.
It is also apparent that officers in corrections were treated
differently and in a discriminatory manner than other facility employees. This
is evidenced by a report dated January 5, 2001 from Associate Warden Fox to
Warden Morris. That report contained the names of officers in corrections and
the number of sick hours used during December 2000. The names and hours used by
other departments were not included. Too, the local form used to report sick
leave was not used in other departments, just in corrections.
It is important to review the testimony of witnesses. Sheffer
testified that he attended meetings with the Warden concerning promotions and
awards and during those meetings Warden Morris would refer to a sick leave
usage file. Carmack testified he was in a meeting in which Warden Morris said a
sick use abuser would not be promoted or granted awards. Drinkwater stated he
has applied for promotion several times to no avail and believes it refers back
to when Morris told him he used too much sick time to be promoted. Russell
testified that he had never been counseled or disciplined for use of sick leave
yet he was told by a supervisor he would not be promoted because of his use of
sick leave.
McNabb
testified he heard Warden Morris state that leave usage and the attitude of an
officer were considered when considering officers for promotion. This was
corroborated by Skaggs. McNabb further testified he was told by a supervisor
that his recommendations for awards were denied because the officers he
recommended had used too much sick leave.
The agency probably will argue that the Arbitrator has to
authority to award damages. In this connection the attention of the Arbitrator
is invited to AFGE Local 987 and U. S. Department of the Air Force, Air
Materiel Command, Robins AFB, Georgia, 57 FLRA 97.
The grievance must be sustained and the remedies requested must be
granted.
Forty days the Union introduced testimony concerning events as far
back as 1996. The Master Agreement became effective on March 9, 1998. What
occurred prior to March 8, 1998 is not grievable. But more controlling is
Article 31 Section d which states that grievances must be filed within 40 days
of the alleged offense. The grievance was filed on February 5, 2001. Forty days
prior to that was December 27, 2000.
The Union claims the Agency has no right or obligation to
determine the reasons employees request sick leave. That flies in the face of
Article 5 Section a of the Master Agreement. That section reserves to
management the right to manage and direct employees, to assign work and to
discipline.
Preventing
sick leave abuse is a legitimate function of management and in doing so the
Agency may develop reasonable rules for documentation of illness and the
policing of sick leave usage. In this regard the attention of the
Arbitrator is invited to 5 C.F.R. Section 630.403. A request for sick leave must be supported by
administratively acceptable evidence. The Agency determines what is or is not
“administratively acceptable evidence”. (See also 5. C.F.R. Section
630.401). (See also American Federation of Government Employees Local 2052 and
Department of Justice Bureau of Prisons Federal Correctional Institution,
Petersburg, Virginia, 30 FLRA 837). The Agency certainly has an obligation to
guard against fraudulent use of sick leave.
Warden Morris
stated there is difference between those who legitimately use sick leave and
those who abuse sick leave. The Master Agreement does not foreclose the
consideration of the use of sick leave when promotions and the granting of
awards is being determined. The Union claims such consideration is not
legitimate. Neither does the Merit Promotion Plan prevent the consideration of
sick leave use.
The use of
sick leave has not been the sole determining factor when promotions and
incentive awards are made. The Union produced several witnesses who claimed
their use of sick leave preventing them from promotions and incentive awards.
This was not substantiated. Union witnesses Skaggs, Carmack, Pennington,
Carollio and Russell all received awards during the 18 months leading up to the
arbitration hearing.
As a remedy the Union asks the Arbitrator to order all the
grievants be given an incentive award. The Comptroller General has determined
that is beyond the authority of the Arbitrator.
The Merit Promotion plan is incorporated in the Master Agreement.
Item 18 c. page 39 of that document provides that non-selection for promotion
is not appropriate for consideration as a grievance. The grievants complained
they were not selected for promotion yet the Union made no claim that
candidates for promotion were not ranked or rated properly. As long as proper
procedures were followed the Warden was free to select anyone from the best
qualified list.
Even in spite of sick leave use many union witnesses had been
promoted including Russell.
The Union
claims the privacy rights of employees were abridged. It is true that locally
developed sick leave forms were filed in performance files. These files were
maintained by and on file in the offices of supervisors and were available only
on a need to know basis. Rehing testified he was required to report to
the Personnel Office the number of employees who used Family Friendly Leave and
the reasons for such leave. What he failed to say that these were included in
his duties as a Time and Attendance Clerk and that such reporting was required
by 5 C. F. R. Section 630.408. There was thus no violation.
Clearly the grievance is without merit and must be denied.
Section D Article 31 of the Master Agreement states grievances
must be filed within forty calendar days of the alleged grievable occurrence.
The instant grievance was filed on February 5, 2001. We are thus concerned only
with any offenses alleged in the grievance which may have occurred on or after
27 December 2000.
Standard Form 71 is the official form for requesting leave. On its
face it appears it is to be completed and signed by the employee. Obviously, if
the employee phones in requesting leave he can not sign it at that time. The
form itself includes a blank in Item 4 for requesting sick and other types of
leave and in Item 5 whether the request is for Family and Medical Leave. It
seems to me that a device is required to record the requested leave at the time
it is requested. Too, there needs to be some way for supervisors to report to
higher levels in the chain of command absences at the time they are requested.
The locally designed form accomplished that.
If SF 71 is the only instrument to be used then the person
receiving the call would have to ascertain whether the requested absence is for
the employee calling in or for a member of the employee's family. If there was
possible too searching questions asked of the employee when using the local
form that could also be true if the supervisor initiates SF 71 at the time the
employee calls in. When the employee returned to work the remainder of the form
would be completed and signed by the requesting employee.
Some of any potential problem might rest with the way the employee
calls in. If he simply says “put me on sick leave today” the supervisor would
then be required to ask “when do you expect to return to work” and “Is this for
you or a member of your family”. On the other hand if an employee calls in and
says “place me on leave today I must take my wife to the hospital and I expect
to be in tomorrow” there is probably no further question to be asked of the
supervisor. There were probably some instances when supervisors asked too
searching questions. That is not because a local form was used but rather lack
of adequate training of supervisors.
Management
has a legitimate purpose to monitor the use of sick leave. Indeed it has an
obligation to do so.
The Union points to January 5, 2001 report from Associate Warden
Fox to warden Morris as proof that employees in the corrections department were
singled out in that names and hours used of employees were reported. It states
no such list of names was furnished for other departments.
A question could be raised as to how the Union obtained a copy of
this report.
The report does reveal some telling statistics. According to the
report there were 151 employees assigned in December 2000. Also according to
the report 92 employees utilized sick leave that month. It seems highly unusual
that roughly 61 percent of employees would be sick in any given month.
Without controls and the monitoring of sick leave by management
the potential for abuse is great. Employees have a statutory right to sick
leave.
Too, a pattern of absences of the day just before an employee's
work week sometimes serves to identify a troubled employee who is in need of
assistance.
I wonder how many employees have carefully read Item 7 of SF
71.
The Union claims the privacy rights of employees have been
violated. The forms were kept in a file maintained and located in offices of
supervisors and available to those with a need to know. The forms were
submitted to the office of the Warden. Testimony indicated the forms were
returned to supervisors by placing them in the supervisor's box. The Union
claims they were thus available for any one to see. If others looked in the box
of the supervisor that would be an infraction by those others. A fellow
employee did see the forms but that was in conjunction with his position as
Time and Attendance Clerk. That person would also have access to SF 71.
The report of January 5, 2001 from Fox to Morris did contain the
names of persons who had used sick leave during December 2000. That did not
amount to “publicly” releasing personal information. The report was not intended
for wide distribution.
5 C.F.R. Section 630.408 requires the Agency to keep certain
records of sick leave use.
The Union
also claims sick leave use was erroneously used when determining who would be
promoted or issued awards. There was no convincing evidence to suggest promotions
were not made from those on a “best qualified” list nor that the list were
compiled in violation of the Master Agreement or statutes. The warden has wide
discretion in granting promotions from among those on a “best qualified” list.
I found nothing that precludes the use of sick leave from the factors the
warden may consider either in the Merit Promotion plan or in 5 C.F.R. section
335. Even so, by letter dated March 5, 2001 the Warden states sick leave usage
is not considered in the administration of the Merit Promotion Plan or
Incentive Awards Program.
Witness
Carmack presented a page from his pocket calendar on which he wrote that at a
meeting the Warden stated that those who used sick leave would not be promoted
or receive incentive awards. This requires several comments. First, the
meeting supposedly took place on August 5, 1999. If the Union believed that was
a violation the time to grieve would have been then, not months later.
Secondly, the calendar notation is a reflection of what the writer interpreted
the warden to have said. Third,
even if true neither the Merit Promotion Plan nor the Incentive Awards program
precludes the consideration of sick leave usage. Fourth, if sick leave usage
was considered in 1999 by letter dated March 5, 2001 the Warden wrote it was
not now used. Fifth, the record is clear that some who have used sick leave
have been promoted and have received Incentive Awards.
The Merit Promotion Plan clearly states in Paragraph 18 c. that
failure to be selected for promotion when proper procedures are used in
preparing a list is not grievable.
The Agency did not maintain and refer to Correctional Employees
request for leave and reasons thereof in violation of the references identified
in Item 5 of the grievance form. The Agency did not selectively and
intentionally discriminate against said employees when administering the
Incentive Awards program and Merit Promotion Plan.
The grievance
is denied.
The undersigned arbitrator, having been duly designated in
accordance with the arbitration agreement entered into by the Parties and
having been duly sworn and having duly heard the proofs and allegations of the
Parties, awards as follows:
The Agency did not maintain and refer to Correctional Employees
request for leave and reasons thereof in violation of the references identified
in Item 5 of the grievance form. The Agency did not selectively and intentionally
discriminate against said employees when administering the Incentive Awards
Program and Merit Promotion Plan.
The grievance is denied.
*Selected by parties through procedures of the Federal Mediation
and Conciliation Service
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