Arbitration Award
Pennsylvania
Bureau of Mediation
Case No. 4154
|
In re
Municipality of Penn Hills
and
Municipal Employees Organization of Penn
Hills
118 LA (BNA) 1806
September 25, 2003
Matthew M. Franckiewicz,
Arbitrator
Contract
Provisions Involved
The
following provisions of the collective bargaining agreement are pertinent to
this case:
Article 5 Holidays
Section 1
B. Personal Days—Regular full-time employees
shall be entitled to four (4) personal days with pay calculated at the base
hourly rate of pay times the employee’s normally scheduled hours of work. It is
agreed that all employees must use three (3) out of the four (4) personal days
no later than November 1, of each calendar year. Failure to use the days by
November 1 shall result in losing the days without compensation. Personal days
shall not be taken on any of the holidays listed Section 1(A) of this Article.
Approval must, however, be obtained at least seventy-two (72) hours in advance
of the date requested. Advance approval may, however, be waived by the
Department Director or his designated representative. Personal days cannot be
approved more than fourteen (14) calendar days in advance of the date
requested.
Article 8 Municipal Rights
Section 1
The Municipality reserves and retains,
solely and exclusively, all of its common law rights to manage the business of
the Municipality as such rights existed prior to the execution of this Agreement,
subject, however, to the provisions of this Agreement. Matters of inherent
Management policy which are not abridged by this Agreement shall include, but
are not limited to, such areas of discretion or policy as the functions and
programs of the Employer, standards of services, its overall budget,
utilization of technology, the organizational structure and selection and
direction of personnel, determination of the number of hours per day or per
week operations shall be carried on, (the determination of the number of
employees required), the assignment of work to such employees in accordance
with the requirements determined by the Municipality, the establishment and
change of work schedules, the right to make and enforce reasonable rules for
the maintenance of discipline, the right to suspend, discharge, or otherwise to
take such measures as the Municipality may determine to be necessary for the
orderly and efficient operation of the Municipal business, provided, however,
that such rights shall not be used for the purpose of discrimination against
members of the Bargaining Unit because of their membership in the Union.
Article 9 Disciplinary Action
Section 3
When the Employer deems it necessary to
suspend or discharge an employee, the Employer will notify the Union through
the employee’s steward, and if the discipline or discharge is administered to
the employee personally, the steward will be present at the time the warning is
issued, unless the employee elects not to have the steward present at such
meeting, and in any event a copy of such disciplinary or discharge action shall
be given to the grievance committeeman and copy sent to the Union within
seventy-two (72) hours. If the steward is present when the disciplinary or
discharge notice is issued, he will initial receipt of a copy thereof. In the
event the employee or the Union believe that the suspension or discharge that
was given out was without just cause, the employee or the Union may file a
grievance in writing within six (6) working days of the disciplinary action or
discharge, or such grievance shall be null and void. Such a grievance shall be
processed starting at Step 3 of the Grievance Procedure.
Article 13 Leave of Absence
Section 1: Sick Leave
A. Regular full-time members of the
Bargaining Unit shall be qualified to receive sick leave benefits for
non-service-connected sickness or disability, which renders such members unable
to perform their duties in accordance with the following schedule subject to
the following conditions:
* * *
3. Regular full-time employees shall
accumulate sick leave at the rate of one and one quarter (11/4) days per month
up to a maximum of one hundred twenty-five (125) days total accrual.
* * *
B. Sickness or injury covered by Worker’s
Compensation shall not be charged against accrual [of] sick leave. Full-time
members are required to report illness to their supervisors before the start of
their shift, and failure to do so may be grounds for disciplinary action. Sick
leave will not be accrued while a full-time member is on leave of absence
without pay.
C. Sick leave is earned to
cover periods of illness or non-occupational disability. It is understood and
agreed that the abuse of sick leave as defined by the Municipality’s Rules and
Regulations constitutes just cause for discipline and it is the intent of the
Municipality to take corrective action up to and including discharge from
employment.
D. Upon request of the
Employer, all employees shall be required to present a doctor’s certificate for
any usage of sick leave in excess of three (3) consecutive days, indicating the
nature of the absence. Claiming sick leave benefits, except as permitted, may
be cause for disciplinary action.
The Administrative
Code, at Section 288.13 provides in part:
(a)
Policy. It is the policy of the Municipality that sick leave is only to be used
when employees are suffering from such sickness or injury which prevents them
from performing their official duty. Employees who are in violation of this policy
and regulations may be subject to disciplinary action up to and including
discharge from employment in accordance with Section 288.08 et seq.
(b)
Regulations. * * *
(5)
Abuse of sick leave. Employees shall not use sick leave to avoid the performance
of their duties. Some examples of sick leave abuse are:
A.
Establishing a pattern of calling off sick on the first or last workday of the
workweek;
B.
Establishing a pattern of calling off sick on holidays, weekends or days of
special functions or activities;
C.
Establishing a pattern of calling off sick on the last scheduled or first
scheduled workday before or after a holiday;
D.
Calling off sick immediately prior to or immediately following vacation
periods;
E.
Establishing a pattern of using sick leave to report late or leave work early;
F.
Calling off sick, or leaving work early, to avoid the performance of an
undesirable duty or to avoid a certain work schedule, including overtime work;
G.
The use of sick days as “personal days” or the use of sick days for any purpose
other than illness or injury which prevents the employee from performing his or
her duty; or
H.
Chronic or excessive use of sick leave, including unpaid sick leave.
The
Facts
Grievant P__
is part of the Line Maintenance Crew in the Water Pollution Control Department.
He has about 10 years service with the Municipality. His job involves tasks
such as dealing with sewer backups, locating manholes, adjusting the height of
manholes to grade, marking lines in connection with excavation and preventive
maintenance. All the work is performed outside, and the job is physically
demanding, involving tasks such as lifting 150+ pound manhole covers, and in
some cases using a sledge hammer or jackhammer to loosen a cover, and dragging
hoses from a truck to the location where work is being performed, sometimes in
the woods, and up and down Western Pennsylvania hills. There is a substantial
amount of lifting and transporting of heavy objects.
Other than for
absenteeism, P__ has not been disciplined by the Employer.
On September
23, 2002 P__ was issued a one day suspension for alleged abuse of sick leave.
The letter references a September 19, 2002 written warning, which asserted that
P__ was continuing to abuse sick leave. The September 19 warning gives the
period covered as June 18 through September 19.
P__ had
previously received an oral warning in June 2000 and written warnings dated February
9, 2001 (covering the period June 16, 2000 to February 9, 2001) 1 and June 6,
2002 (covering January 1, 2002 through June 6, 2002),2 each stating that the
warning was being issued for abuse of sick leave. The June 2002 warning also
states that P__’s attendance would be reviewed every six months. All the
warnings referred to above cite Article 13 Subsection 1(C) of the collective
bargaining agreement. In each instance Director of the Water Pollution Control
Department James Schaffer reviewed P__’s attendance card with him and pointed
out the instances that indicated a pattern of sick leave abuse to him, and
provided P__ a copy of his attendance record. Although the June 2002 warning
letter stated that P__ would be reviewed every six months, Schaffer testified
that he told P__ he would be reviewed quarterly.
Each year
Schaffer reviews the attendance record of each employee under his management.
In cases where Schaffer determines that the employee has abused sick leave, he
may instruct the employee (as he did with P__) that the employee will be
subject to more frequent review, usually in three or six months.
The
collective bargaining agreement provides that employees earn 120 hours sick
leave annually, and can accumulate up to 1000 hours. P__’s attendance records
disclose that he entered the year 2000 with 176 hour of sick leave, and that he
entered the year 2001 with 228.75 hours of sick leave (which would indicate
that he used 67.25 hours of sick leave in 2000). He entered the year 2002 with
209.75 hours of sick leave (which would indicate that he used 139 hours of sick
leave in 2001). His attendance record for 2002 shows 126.75 hours of sick leave
used, the last 22 of which were after the suspension at issue in this case.
Schaffer
stated at the hearing that he considered P__ to have violated subparagraphs A,
D and E of 288.13(b)(5) quoted above. By my count, Schaffer identified 14
“pattern” absences by P__ in 2002 prior to September 23. Of these nine were
absences adjacent to a day off, holiday or vacation day. But two of these nine
instances involved unpaid leave rather than paid sick leave.3 Schaffer cited
nine occasions as demonstrating a pattern of taking partial sick days, all
involving early departures rather than late arrivals. Four of these (March 22,
April 19, May 28,4 and August 9) were also days adjacent to a weekend (March
22, April 19 and August 9 were Fridays) or a holiday (May 28 was the day after
Memorial Day). During the period June 18 through September 19, 2002 (which, as
stated in the September 19 warning, is the period addressed by the suspension)
there were five absences that would fit one or another of the “patterns” listed
in the Administrative Code: July 1 (first day of the work week), September 18
(first scheduled work day after vacation), and three partial day absences (July
18, August 9 [which was also a Friday], and August 28). The Employer does not
dispute P__’s testimony that he never failed to report off with respect to any
of his absences.
P__ stated
that the heavy lifting and occasional slips on wet grounds caused frequent
aches and pains, which sometimes led him to take a sick day. He stated that he
lost work due to an on the job back injury in late 2000, although his
attendance record suggests it was actually late 2001, and that he suffered
occasional flare ups from this injury. Anti-inflammatory medications and muscle
relaxers did not alleviate his pain, and he sought pain relief through
drinking. He recognized that he had a drinking problem, and entered the Employee
Assistance Program. He completed a six week outpatient rehabilitation program
on March 6, 2002. He attended Alcoholics Anonymous meetings almost daily for
about four months but suffered a relapse around the summer of 2002 for which he
sought hospital admission and thereafter resumed attending AA. He usually
attended evening AA meetings, but occasionally when he felt a particularly
urgent need, he left work early to attend noon AA meetings. He estimated that
about five of his partial day absences were to attend noon AA meetings.
Jack
McClintock, a 33 year employee who worked in line maintenance for about 10
years, estimated that he used more sick leave when he held that job, because of
the nagging injuries and the susceptibility to flu since the job involved
constant exposure to the elements. Raymond Rall, also a long term employee who
spent about 12 years in line maintenance and the rest of his time as a plant
operator, provided a spreadsheet listing his sick time and occupational injury
time each year. In general, it appears that Rall used more sick leave and lost
more time to work related injuries when in line maintenance than as a plant
operator.
Much of the
work in the Department is done on a team basis, so that absence of a line crew
member, particularly when the absence is unanticipated, disrupts the
Department’s schedule. Either the project involved must be postponed because of
the absence, or an employee must be pulled from a different project or
division, with ripple effects on other work. As far as Schaffer could recall,
P__’s absences did not necessitate overtime work by other employees.
During
negotiations for the current collective bargaining agreement, the Employer
proposed modifying the sick leave provisions, to reduce sick leave accrual to
12 days (96 hours) per year, and to require medical statements for absences of
a single day adjacent to other days off (vacations, holidays, personal days,
weekends). These proposals were not incorporated into the agreement, which
retained the language of the prior agreement.
Issue
The issue is
whether there was just cause for the suspension.
Position of
the Employer
The
Municipality asserts that the suspension was for just cause. It maintains that
the Grievant’s attendance record during a three month review period
demonstrates a pattern of sick leave abuse, contrary to the policy. It submits
that in view of his prior record, a one day suspension was appropriate.
It asserts
that while the job is a physical one, the same can be said of the other jobs in
the Department, and there is no indication other employees are unable to
maintain regular attendance. It contends that an employee is not free to use
sick time in any way he chooses merely because he does not exceed his sick leave
allotment.
It regards
the Union’s evidence as insufficient to establish that any of the absences
addressed by the suspension were due to Grievant’s on-the-job back injury
(noting that the only physician’s statements provided were dated in May 2002),
or for AA meetings, which were available after his regular shift. It notes the
absence of documentation or corroboration in this regard. On the assumption
that some absences were for AA meetings, it questions why the Grievant did not
return to work after the meetings. Thus it reasons that Grievant failed to
demonstrate a reasonable excuse for most of the absences at issue in this
case.
It compares
the Grievant with John McClintock and Raymond Rall, who used much less sick
time during 2000-2002, and concludes that Grievant’ usage of sick time was
excessive.
It regards
the Union’s testimony about bargaining proposals for greater requirements for
doctors’ certificates as irrelevant. Likewise, it considers the Union’s
evidence about requests during the grievance procedure for documentation
regarding the absences as misplaced, in that an employee should not be
permitted to use Article 13 as a shield to avoid proving his own claims.
It points
out that there is no claim that the sick leave policy is unreasonable, or that
it was selectively enforced.
It asks that
the grievance be denied.
Position of
the Union
The Union points out that the Grievant only once
had an absence of more than three days, and that he provided a medical
certificate in connection therewith, and that he never exceeded his allotted
sick leave time.
The Union
cites Article 13 Subsection 1(D) of the agreement, and argues that in providing
the Grievant the “opportunity” to provide medical certificates covering
absences of less than three days, it effectively required medical documentation
in situations beyond those covered by Subsection 1(D), despite the Employer’s
unsuccessful attempt to negotiate such a requirement into the current
agreement. It characterizes the Municipality’s action as an “end run” around
Subsection 1(D), and an attempt to gain through arbitration what it was unable
to obtain at the bargaining table.
It maintains that the Employer has the burden of
demonstrating just cause and that here it has failed to sustain that burden. It
faults the Municipality for requiring the Grievant to produce medical
substantiation of his absences, particularly since it had never done so in the
past and had given no warning that it intended to do so. It insists that
Article 13 Subsection 1(D) amounts to a specific contractual prohibition
against the Employer requiring proof of claims of illness except where the
illness exceeds three consecutive days. It further contends that there is no
showing that the Grievant’s use of sick leave was excessive in that other
employees used more sick leave, and two former line maintenance employees
testified that they used more sick leave when in that job than in their
current, less physically demanding positions.
It asks that
the grievance be sustained and that the suspension be voided and the Grievant
made whole, and that the Employer directed to cease and desist from requiring
medical certification for sick leave usage not in excess of three days.
Analysis and
Conclusions
The
collective bargaining agreement references the Employer’s Rules and
Regulations, so that in this case, interpreting or applying the collective
bargaining agreement amounts to interpreting or applying the Municipality’s
Administrative Code.
The
Administrative Code prohibits abuse of sick leave: “sick leave is only to be
used when employees are suffering from such sickness or injury which prevents
them from performing their official duty.” (Section 288.13(a)) and “Employees
shall not use sick leave to avoid the performance of their duties.” (Section
288.13(b)(5)). It provides “examples” of sick leave abuse, mostly involving
certain patterns of sick leave usage. By labeling these patterns as examples,
the Code recognizes that the determination of whether an employee is abusing
sick leave cannot be reduced to a simple matter of counting. Patterns of sick
leave usage may indicate or suggest that the employee is abusing sick leave, but
they do not conclusively establish such abuse. For example, an employee may
have an oncology treatment each Monday for many weeks. While merely examining
attendance records would strongly suggest abuse of sick leave, no one would say
that such an employee is guilty of sick leave abuse. Examining an employee’s
attendance pattern is only the beginning, and not the end, of the inquiry as to
whether the employee has abused his or her sick leave.
The Employer’s request for any documentation
regarding the Grievant’s absences during the pertinent time period is an
implicit recognition of the notion just expressed that the issue involves not
only tabulating the absences but also examining why the employee was absent.
Contrary to the Union, I find nothing improper in the Municipality’s request
for any documents that would substantiate the Grievant’s explanation of his
absences. In this regard, the Union misconstrues the relationship between
Article 13 Subsections 1(C) and 1(D).
Subsection
1(D) states that an employee may be required to provide a physician’s
certificate for an absence of longer than three consecutive days. Under this
subsection, the doctor’s statement is a precondition to receiving sick leave
for the time involved. If the employee fails to provide the certificate, the
Municipality may refuse to grant sick leave for the day(s) at issue, and
instead require the employee to allocate the time to vacation, personal days or
unpaid leave. But the question of whether an employee is entitled to sick leave
payment is a different one from whether the employee is engaged in abuse of
paid sick time.
Subsection
1(C) explicitly recognizes Management’s right to discipline an employee for
sick leave abuse, as specified in the Municipality’s Rules and Regulations
(that is, the Administrative Code). Normally, the determination of whether an
employee has abused sick leave can only be made after the fact. And usually
there is little significance in the fact that an employee reports off sick on a
particular day, such as a given Monday. It is only when the employee regularly
uses sick leave on Mondays that suspicion arises that the employee is involved
in something untoward. By that time, however, the sick leave has already been
paid, and the issue is not whether sick leave should be granted, but whether
the employee is subject to discipline. As noted earlier, a pattern of sick leave usage does not
conclusively establish abuse, and the Employer must decide whether to accept
the employee’s claim that, despite the pattern, his or her use of sick leave
was in fact legitimate. In such an instance, the existence of documentation
would tend to support the employee’s claim, and it is entirely appropriate for
the Employer to ask whether such documentation exists. The absence of such
documentation does not tend to condemn; it simply fails to help exonerate the
employee. Thus I find no violation of the collective bargaining agreement in
the Municipality’s request for any documentation supporting the Grievant’s
position.5
Whether or not documentation exists, the
underlying question is still the same: did the Grievant in fact abuse his sick
leave?
As stated
above, a single day of sick leave is of little significance, and a possible
pattern of sick leave abuse must be assessed over a period of time. But if the
time period examined is too short, any “pattern” that appears may be too
ambiguous to be reliable. Even if taking 12 Mondays off in 12 months would
indicate sick leave abuse, taking three Mondays off in three months is more
equivocal. This is simply an application of the statistical principle that the
smaller the sample, the less reliable are the conclusions that can be drawn. It
seems to me problematical to base a finding of sick leave abuse, as the
Municipality does, on five “pattern” absences in a relatively short three month
period. I note that over the last three calendar months of the year 2002,
Grievant had no “pattern” absences. Thus the Grievant’s attendance record would
appear more favorable if viewed over a longer time frame.6
There are
additional problems in the Employer’s methodology. When Grievant was issued his
June 6, 2002 written warning, he was told that he would be reviewed every three
months (although the warning itself says six months). The Municipality treated
the three month period as beginning June 18, 2002.7 But if the three month
period began June 18, it should have ended September 17, and the final
“pattern” absence on September 18 should not have been counted. Thus Grievant
P__ should have been assessed only four, rather than five, “pattern” absences
during the three months. I note also that P__ took vacation days on Monday and
Tuesday during the week, so that he had only a three day workweek that week. In
a three day week, absence on either the first or last day of the workweek would
be treated as a “pattern” absence and only the middle day of the week would not
be treated as a “pattern”absence.8
Similarly,
another of the “pattern” absences counted by the Municipality was July 1. That
week, July 4 was a Thursday. Thus only an absence on Tuesday of that week would
not be counted as a “pattern” absence. The point in this regard is that in
weeks where almost any day absent would be counted as a “pattern” day, the
significance of the pattern becomes more difficult to assess.
Thus of the
five “pattern” absences counted by the Employer in a three month period, one
was actually outside the period, and this as well as another absence occurred
in weeks where nearly any absence would be counted as a pattern absence.
There is
also an apples-and-oranges aspect to the Municipality’s tabulation of the
pattern absences. The two absences discussed above were both full day absences.
The three remaining absences were treated as “pattern” absences for a different
reason, namely that they involved sick leave of less than a full day, what I
would term as a partial day absence. Whatever inference of sick leave abuse
that may be drawn from the fact that an employee has utilized a substantial
number of sick days, all falling into the same pattern, the same inference is
less valid where many of the absences do not fit a particular pattern, even
though some seem to fit a different pattern of possible sick leave abuse. To
state it otherwise, two absences on the first work day, and three partial day
absences do not carry the same weight as would five Monday absences.
Further,
examination of the attendance record reveals that one partial day absence
(Wednesday August 28) preceded a full day absence the following day. This
particular pattern suggests, if anything, that the employee became sick while
at work, remained off the following day (Thursday) and returned to work on
Friday. At least in this case, the way in which the sick leave was taken does
not indicate an employee abusing sick leave.
Grievant P__
testified that about five of the partial day absences he incurred in 2002 (half
his total partial day absences for the year) were occasioned by attendance at
AA meetings. The Municipality does not contend that it is inappropriate to
apply sick leave to the time spent attending AA meetings, and that vacation or
personal leave must be used in such cases. Indeed, the Employer’s request for
documentation indicates that it would consider use of sick leave to attend AA
meetings as legitimate rather than abusive. Unfortunately, no documentation
exists, and P__ cannot determine whether he attended an AA meeting on any
specific day when he used less than eight hours sick leave. But it seems
reasonable to posit that at least one of the three partial day absences during
the time frame being examined involved attendance at an AA meeting. Thus of the
three partial day absences at issue in this case, at least one, and quite
possibly two, seem to involve proper use of sick leave.
In summary,
in view of the brief period examined by the Employer in concluding that
Grievant P__ engaged in sick leave abuse based on five instances of sick leave
usage, the conclusion seems a tenuous one. Of the five instances, one was
actually outside the three month period chosen by the Employer to gauge the
Grievant. The remaining four absences do not fit a particular pattern, and an
inference of abuse is harder to support if it depends on combining different
patterns of possible abuse. Of the three partial sick days taken by the
Grievant, at least one and perhaps two would appear to involve legitimate
applications of sick leave.
Based on the above, I conclude that the evidence
is insufficient to demonstrate that the Grievant was guilty of sick leave
abuse, and I therefore sustain the grievance.
Matthew M. Franckiewicz, Arbitrator
September 25, 2003
Award
The
grievance is sustained. The suspension is revoked, and the Municipality shall
remove all references to it from the Grievant’s personnel records and make him
whole for any loss of income occasioned by the suspension.
Footnotes
1. The typed
date on the warning is February 8, but the handwritten date next to the
signature is February 9.
2 The handwritten
date is difficult to read, but appears to be June 12, 2002.
3. According
to Schaffer, P__ requested unpaid leave for a four day absence because he
lacked the medical excuse as required by the agreement. P__ stated, however
that he did have a medical excuse, and provided a copy of it at the hearing. In
any event, no sick leave was charged for the four days involved. P__’s other
unpaid absence, in January 2002, was to enter a detoxification program.
4. P__
provided a chiropractor’s statement that he treated P__ on May 28.
5. Cases
such as Rock Island Arsenal, 76 LA (BNA) 441 (Garman, 1981) and Bethlehem
Steel Co., 42 LA (BNA) 851 (Hill, 1964), relied upon by the Union, do not
suggest a contrary result. Both involve whether the grievants were entitled to
claim sick leave for the absences at issue despite the lack of documentation,
rather than whether abuse of sick leave should be inferred from the grievants
overall attendance records. It should be noted in this context that the fact
that an employee has available sick leave credit in his account does not
preclude discipline for improperly using that sick leave. Sick leave is
intended to cover time off due to illness, injury or medical treatment, and is
not equivalent to personal vacation days. This conclusion is inescapable from
the fact that the collective bargaining agreement provides separately for
personal leave and sick leave.
6. Of
course, it could also be posited that the imposition of discipline in September
itself prompted better attendance in October through December.
7. See the
September 19, 2002 warning letter referred to in the suspension letter.
8. The
Grievant had approximately 19 days of vacation eligibility under Article 6
Section 2 of the agreement. As of September 18 he had used 10 of those days, so
that he had not exhausted his vacation by the time he used a sick leave day on
September 18.