Title: Veterans Affairs Medical Center and AFGE Local 131
Date: January 31, 2003
Arbitrator:  Phyllis Almenoff
Citation: 2005 NAC 106

FEDERAL MEDIATION AND CONCILIATION SERVICE

APPEARANCES

For the Employer

Billie Meredith, HR Specialist
Veterans Affairs Medical Center
3701 Loop Rd.
Tuscaloosa, Alabama 35405

For the Union

BEFORE:   DR. PHYLLIS ALMENOFF, ARBITRATOR

DECISION AND AWARD

WITNESSES TESTIFYING

          EMPLOYER

Called by the Employer

Rebecca Arrington
Director, Nutrition Services

Danny Hodges
Food Service Worker Supervisor 
Nutrition Services Department                  

Also Present

James T. Rasco, Jr.
Director, Resource Management Service

         UNION

Called by the Union

Chester Wilson, Grievant
Truck Driver

Hezekiah Carstarphen
Housekeeping Supervisor

INTRODUCTION

The grievance was submitted to Arbitrator Phyllis Almenoff pursuant to the terms set forth in Article 40 of the Master Agreement between the Department of Veteran Affairs and the American Federation of Government Employees (Joint Exhibit 1)  for a final and binding resolution of the issue.  The Arbitrator was jointly selected by the parties from a list submitted to them by the Federal Mediation and Conciliation Service of the United States Government.  Prior to the hearing, the arbitrator disclosed that her son is an employee of the Veteran Administration Hospital System and offered to recuse herself.  More specifically, he is the Acting Director and Chief Medical Officer of Visin 15 in Kansas.  There were no objections to her service as an arbitrator in this case by by either party.

The parties mutually stipulated at the hearing that the grievance had been filed July 30, 2002 and was appropriately processed through the steps of the grievance procedure without a satisfactory resolution (Joint Exhibit 3.)  The parties stipulated that the grievance was properly before the Arbitrator and that the Arbitrator had been properly called.

At the hearing the Arbitrator asked if the parties had any objection to the decision and award being published in a labor relations journal.  Neither party objected; their representatives signed a release form.

The hearing took place on January 9, 2003 at the Veterans Administration Hospital in Tuscaloosa, Alabama.  At that time both parties were afforded full opportunity to present testimony, offer evidence and arguments in support of their respective positions and to cross-examine witnesses.  Both the Union and the employee presented its closing arguments at the hearing.  Both parties requested to file post-hearing statements and provide copies to the other party and submit final statements to the Arbitrator by January 22, 2003.  The record was closed upon receipt of the post-hearing statements on January 17, 2003.

STATEMENT OF THE ISSUE

The parties stipulated to the following issue in this case:

Was the Employer justified under the terms of the Collective Bargaining Agreement when it issued a “Sick Leave Counseling” memo to the grievant?

If not, what shall be the remedy?

The grievance (Joint Exhibit 3) states the following:

Employee’s Statement of Grievance: I am filing a grievance because I feel I received an unjust counseling memo (VA Form 2105.)

Articles Violated:            Article 32 Section 18: A2 and B5

Relief Requested:            I want counseling removed from my folder.

The Employer denied the grievance at the third step of the grievance procedure on September 4, 2003 and indicated that the counseling was appropriate under the circumstances that were documented.

The Union demanded arbitration.

The sections of the Collective Bargaining Agreement which relate to this issue are as follows:

ARTICLE 16 – EMPLOYEE RIGHTS

Section 1 – General

In an atmosphere of mutual respect, all employees shall be treated fairly and equitably and without discrimination in regard to their political affiliation.  Union activity, race, color, religion, national origin, gender, sexual orientation, marital status, age, or non-disqualifying handicapping conditions.  Employees will also be afforded proper regard for and protection of their privacy and constitutional rights.  It is therefore agreed that Management will endeavor to establish working conditions which will be conducive to enhancing employee morale and efficiency.

* * * *

ARTICLE 40 – ARBITRATION

Section 2 – Conventional Arbitration Procedure

* * * *

B.        The procedures used to conduct an arbitration hearing shall be determined by the Arbitrator.  Both parties shall be entitled to call and cross-examine witnesses before the arbitrator.  All witnesses necessary for the arbitration will be on duty time if otherwise in a duty status.

* * * *

E.    The parties will attempt to submit a joint statement of the issue or issues to the arbitrator.  If the parties fail to agree on a joint submission, each shall make a separate submission.  The arbitrator shall determine the issue or issues to be heard.

* * * *

F.        The arbitrator’s decision shall be final and binding.  However, either party may file an  exception to the arbitrator’s award in accordance with applicable law and regulations.  The arbitrator will be requested to render a decision within sixty (60) days.  Any dispute over the interpretation of an arbitrator’s award shall be returned to the arbitrator for settlement, including remanded awards.

* * * *

D.  Conduct of Hearings

2. The arbitrator, after contacting both parties and arranging for the hearing date time and place, shall conduct the hearing pursuant to the following guidelines:

a.   The hearing shall be informal,

b.   There shall be no formal rules of evidence applied,

* * *

c.   The arbitrator shall have the obligation and authority to assure that all relevant information is brought before the arbitrator by the representatives of the parties and shall insure that the hearing is a fair one.

* * *

        f.    No briefs shall be filed.

* * * *

ARTICLE 42 – GRIEVANCE PROCEDURE

Section 2- Definition

* * * *

A.       A grievance means any complaint by an employee(s) or the Union concerning any matter relating to employment, any complaint by an employee, the Union or Management     concerning the interpretation or application of this Agreement and any supplements or any claimed violation, misinterpretation or misapplication of law, rule or regulation affecting conditions of employment.

* * * *

ARTICLE 32 – TIME AND LEAVE

Section 1 – General

A.       Employees will accrue and use sick and annual leave in accordance with applicable statutes, OPM regulations, and this Agreement.

* * * *                

C. Employees should request, in advance, approval of anticipated leave

* * * *        

G. For clearly compassionate and appropriate reasons Management may increase the stated limits applicable to all forms of leave in accordance with government wide regulation and law.

Section 5 – Documentation for Sick Leave

A.       An employee requesting annual leave, sick leave, or leave without pay for periods of illness of three consecutive workdays must make an appropriate request and may be required to furnish evidence of the need for sick leave upon return to duty.  An employee may justify the request for sick leave:

* * * * 

2. By the employee’s own written statement in instances where the illness was not treated by a physician.  The statement will indicate why a physician was not seen, for example, remoteness of area, nature of illness or other specific reasons.  the supervisor may request clarification should the employee’s written statement not be sufficient to support the request.

Section 6 – Leave Misrepresentation

No approved leave or approved absence will be a basis for disciplinary action except when it is clearly established that the employee submitted fraudulent documentation or misrepresented the reason for the absence.

* * * * 

C.        Where there is substantial reason to believe that an employee is abusing the sick leave entitlement:      

1.         The employee shall be formally counseled and advised of the possibility of future medical certification requirements should the abuse continue.

2.         If the abuse continues, the employee may be required to furnish a medical certification for each sick leave application.

3.         All such cases requiring a counseling or medical certification may be reviewed in four (4) months but not later than six (6) months afterward.

Note:  Frequency or amount of leave used will not be the sole factor for determining sick leave abuse, nor will leave for which medical documentation has been provided.  When abuse ceases, the restriction will be removed, the record shall be made clean, and the employee will be notified of this action. 

Section 18 – Family Friendly Leave

A.       Employees may us up to forty (40) hours of sick leave in a year under the Federal Employee Friendly Leave Act:

1.        To care for or otherwise attend to a family member having an illness, injury, or other condition which if an employee had such a condition would justify the use of sick leave by such an employee and

2.        For purposes relating to the death of a family member, including making arrangements for and attending the funeral of such family member.

B.        Family member is defined as:

* * * *       

5.        Any individual related by blood or affinity whose close association with the employee is the equivalent of a family member.

C.       Up to an additional sixty-four  (64) hours may be used if that number of hours does not cause the employee’s sick leave balance to fall below eighty hours.

* * * *

Section 20 – Leave for Bereavement

A.           Upon request, subject to any documentation requirement, leave-approving officials shall approve up to five days of annual leave, sick leave, and/or LWOP for employees to mourn the death of the following family members:

* * * *

C.           The supervisor has discretion to require documentation (e.g., obituary death certificate) prior to final approval of bereavement leave.  However this documentation will normally be required in unusual circumstances.

GOAL SHARING AWARD PROGRAM (Joint Exhibit 4)

Current Goal Sharing period of time:   April 1,  2002 – September 30, 2002

Employee meets ALL of the following to receive the award.

Criteria

* * * *

Attendance is satisfactory. (No formal counseling for tardiness or sick leave usage counseling or formal leave restriction during the goal sharing period).

* * * *

 FACTUAL BACKGROUND

This grievance arose when Chester Wilson, the Grievant received a Sick Leave Counseling memo from the Director of Nutrition Services stating that his total use of sick leave and/or sick leave taken on weekends and/or before days off appears questionable.

 The Employer is the Veterans Administration Medical Center where Chester Wilson is employed.  The Union is the sole and exclusive bargaining representative of nonprofessional employees.  The parties have maintained a collective bargaining relationship for many years. During the period relevant to this grievance the Collective Bargaining Agreement covered the Grievant.

Chester Wilson, the Grievant, has been a motor vehicle operator for the Food Service Department of the Veteran Administration Medical Center for the past two years and has been employed by the Veterans Administration System for the past twenty-six (26) years. He has worked in various capacities in several departments. Mr. Wilson has earned an excellent reputation as an employee.  He has never been disciplined for any infraction throughout his career.

It has been the practice of the Medical Center for at least the past ten years to review sick leave usage for each employee every six months.   If an employee is absent the equivalent of four (4) days in a six-month period his/her sick leave usage is reviewed.  When there is substantial reason to believe that an employee is abusing sick leave entitlement the employee is formally counseled and advised that in the future, medical certification may be required for each sick leave application.  After a period of four (4) four but not later than six (6) months another review of sick leave usage is conducted to determine whether there has been substantial improvement. If the sick leave abuse is discontinued and the employee’s absence record shows significant improvement (a 50% reduction), the record is made clean and the employee is notified of this action.

Mr. Wilson’s attendance record was reviewed for the six-month period from 12-12-01 through 6-11-02.  His sick leave balance at the end of that period was 823.25 hours (131 days).  However the record revealed that he had used eighty (80) hours or seven (7) days of “Friendly Family Leave” which is charged to sick leave during this six month period. Rebecca Arrington, the Director of Nutrition Services testified that a worker who uses four or more days of sick leave during a six month review period triggers a further review of these absences to determine whether the employee is abusing the sick leave entitlement. Based upon this standard, a further review of Mr. Wilson’s absences was undertaken.  A report was generated showing that all leave taken by Mr. Wilson during this period had occurred before or after days off. The report indicated that he had taken a total of seven (7) days off for “care and bereavement” on four separate occasions and in each instance Mr. Wilson had taken leave either on weekends or before or after days off. The Grievant had requested leave in advance on only one of the instances of family friendly leave. Both of his supervisors testified that the pattern of absence that the report revealed constituted substantial reason to believe the employee was abusing his sick leave entitlement. As a result of this review, he received a Sick Leave Counseling Memo informing him of this questionable pattern and stating that the memorandum would be reviewed within four months to determine whether the memo should be removed or if medical certification would be required in the future. (Joint 3)

When the Counseling Memo was presented to him by Danny Hodges, his immediate supervisor, the Grievant was advised to provide documentation for his absences to obtain consideration for removing the Counseling Memo.  He did not provide documentation or certification to verify the reason for his absences.

A grievance was filed on July 15, 2002.  In response to the first step of the grievance procedure, Danny Hodges, his immediate supervisor, provided Mr. Wilson with further explanation for the counseling in writing. (Joint 3)  and requested that he provide information to justify the rescinding of the Memo by July 26, 2002. The Grievant declined to provide the documentation..  The grievance decision was upheld at the second and third steps. (Joint 3).  The grievance was filed to arbitration.

Following the Counseling Memo, a four month review of Mr. Wilson’s attendance showed substantial improvement and the Counseling Memo was removed from his record.  However, the Grievant was not notified of this action.

A program called Goal Sharing had been offered in the past and Mr. Wilson had received cash bonuses for being a good employee and meeting the established criteria.  There was no assurance that Goal Sharing would be offered in the future because of budget considerations.  It was, however, offered for the period of time from April 1, 2000 – September 30, 2002.  Mr. Wilson could not meet all of the criteria to receive a bonus as a result of the Counseling Memo that he had received during that Goal Sharing time period. (Joint 4)  The employer objected to testimony concerning this issue because it had not been raised during the grievance.

POSITION OF THE PARTIES

Position of the Employer

The Employer contends that it properly provided a Counseling Memo to the Grievant under the provisions of the Collective Bargaining Agreement and that the sending of the Counseling Memo should be upheld. (Joint 1, Joint 2)  The Grievant had been absent on four separate occasions for a total of eighty (80) hours for Care and Bereavement in a period of six months.  They allege that a review of his attendance record showed a questionable pattern of absences on weekends and/or before or after days off. Article 32 Section 5 C1 of the Collective Bargaining Agreement states: Where there is substantial reason to believe that an employee is abusing the sick leave entitlement the employee shall be formally counseled and advised of the possibility of future medical certification requirements should the abuse continue. In support of their position that the Counseling Memo was justified, the Employer offered the following arguments:

1.      Attendance records of employees are reviewed every six months.  If an employee is absent four days during this period there is a further analysis of sick leave usage.

2.      The Grievant took seven days off for Care and Bereavement during the review period in question (80 hours).  Further analysis of his attendance showed a questionable pattern of absences which on each occasion was followed or preceded by weekends or days off. The Grievant requested leave in advance on only one occasion.

3.      Counseling Memos are not considered disciplinary actions.  The use of these memos has resulted in improved attendance.  They are removed from the record if the employee’s attendance shows substantial improvement following a subsequent four-month review.

4.      Employee attendance is critical to the smooth functioning of the Department.  Lack of advance notice of absences makes it very difficult to provide the necessary services to the Medical Center.

5.      The importance of good attendance is discussed and reinforced at almost all employee meetings.  Absences have an adverse impact on the functioning of the Department, scheduling and other employee’s workloads.

6.      Family Friendly Leave Days are paid sick leave bank days and are subject to the same restrictions as sick leave.

7.      Mr. Wilson was asked to provide documentation or certification to justify his use of the seven care and bereavement days taken in order to consider the rescinding of the Counseling Memo.  He declined to provide any documentation for his absences.

8.      The Grievant is a valuable employee and does a good job.  His character is not in question.  Nonetheless, the same attendance standards are applied to all employees.

9.      Following the Counseling Memo, a review of the Grievant’s attendance record   after four months showed substantial improvement and the Memo was removed from his record in mid October.

Position of the Union

The Union argues that the Employer was not justified in giving the Grievant a Counseling Memo and that the Memo should be removed from his file and he should be made whole.  In support of its position, the Union offers the following arguments:

1.      The Grievant is a very good employee who has been with the Veterans Administration for twenty-six years.  He has never been disciplined.

2.      The Grievant is not a sick leave abuser.  He has 103 days in his sick bank.

3.      There was no progressive discipline prior to issuing the Counseling Memo.

4.      The Grievant was not advised of an attendance problem orally prior to his receiving the written Counseling Memo.  

5.      The Grievant’s wife’s sister who lived in Columbus, Ohio was very ill.  She required surgery.  Subsequently she passed away.  Mr. Wilson was needed to support his wife.

6.       Documentation for the absences was only requested after the Union became involved.

7.      The Grievant is not eligible for a Goal Sharing bonus as a result of the Counseling Memo.

8.      Family Medical Leave and Family Friendly Leave are very confusing. Clear explanation and guidelines for their use should be developed.

ANALYSIS OF THE EVIDENCE

The issue to be determined in this dispute is whether the Employer was justified under the terms of the Collective Bargaining Agreement in issuing the Grievant a Counseling Memo based on all of the facts in evidence.  The controlling contract language is found in

Article 32; Section 5 C of the Collective Bargaining Agreement. Section 5 C provides the Employer with the ability to issue a formal counseling memo “where there is reason to believe that an employee is abusing the sick leave entitlement.”  The Union argued that Section 5C does not apply because the Grievant used “care and bereavement” days not sick leave. Because “care and bereavement” and “family friendly leaves” are charged against sick leave entitlements they must be considered equivalent.  Did the Employer have reason to believe that the employee was abusing the sick leave entitlement?  An attendance review system had been in use for more than ten years to monitor sick leave usage for all employees.  Mr. Wilson used sick leave days on four separate occasions totaling seven days for “care and bereavement.”  Each of these absences was taken before or after days off or on a weekend.  He requested leave in advance on only one of these occasions.  In the opinion of the Arbitrator, these absences did constitute a suspicious pattern of absences. Section C of Article 32 of the Agreement outlines the procedure to be followed when there is substantial reason to believe the sick leave entitlement is being abused.  The employee shall be formally counseled and advised of the possibility of future medical certification requirements should the abuse continue.  If the abuse continues, the employee may be required to furnish a medical certification for each sick leave application.  Cases requiring counseling are reviewed after four months but not later than six months afterward.  When abuse ceases, the record is made clean and the employee is notified of the action.

Article 32: Section 1 of the Collective Bargaining Agreement states: Employees willl accrue and use sick leave in accordance with applicable statutes, OPM regulations and this Agreement.  It also states: Employees should request, in advance, approval of anticipated leave.  Mr. Wilson neglected to request leave in advance for three of the four periods of absence.  Article 32 outlines the Employer’s right to require employees to make appropriate request for sick leave of three consecutive workdays and provides management the right to require evidence of the need for sick leave upon return to duty. Only one of the absences was for three days.  Management had the right to request documentation for that absence. The Agreement also states that if the illness was not treated by a physician, the employee may provide a statement explaining the nature of the illness and the reason a physician was not seen.  The supervisor may request additional information for clarification and to support the request for leave. 

 Section 18 provides for the use of sick leave under the Federal Employee Family Friendly Leave Act.  This leave may be used to care for a family member having an illness, injury or other condition which if an employee had such a condition would justify the use of sick leave by such an employee.  At the Hearing, it was indicated that Mr. Wilson was needed to provide support to his wife.  No further explanation was given.   The Agreement also stipulates that Family Friendly Leave can be used for purposes relating to the death of a family member, including making arrangements for and attending the funeral of such family member.  The definition of family members include:  any individual related by blood or affinity whose close association with the employee is the equivalent of a family member.  It would seem easy enough to certify the death and funeral arrangements for his sister-in-law and his role in making arrangements for and attending the funeral.  Section 20 deals with paid and unpaid leave for bereavement days which may be subject to any documentation requirements.  It provides that the supervisor has discretion to require documentation prior to granting bereavement leave in unusual circumstances.

The Family Medical Leave Act is not relevant in this case because the Grievant did not claim that his wife had a serious illness and the relationship of wife’s sister is not covered under the F.M.L.A.

It is indisputable that workers in a medical center are critical to the operation of that center and the well being of patients.  In this case, the Grievant is a motor vehicle operator in the Food Service Department.  His supervisors testified to the adverse effect that an employee’ absence has on the smooth running of the department and other employees workload.  When management is not forewarned that an employee will be absent the problems are compounded. 

There is no question that management has a legitimate concern in preventing abuse of sick leave claims and in so doing so, it may formulate reasonable rules for the documentation of absences for family illness and for purposes of bereavement.  It may also develop a system for the policing of a sick leave benefit plan, so long as it is not arbitrary, discriminatory, or unreasonable.  Documentation may be required under suspicious circumstances, such as absences before and after weekends or days off.  Undoubtedly, the Employer has the right to establish, maintain and enforce reasonable rules and regulations. 

There was testimony regarding the character, work ethics and value of the Grievant as an employee.  He has a bank of 103 sick days leading one to believe that he has not been a sick leave use abuser in the past.  Nonetheless, his pattern of absences during the six month period of review did reveal that he had developed a pattern of using Family Friendly Days before and after weekends and days off.  The Grievant claimed that the four occasions using seven days (80 hours) were used for care and bereavement.. 

Mr. Hodges, his immediate supervisor, testified that when the Grievant received the Counseling Memo he was told to provide documentation for his absences to justify the removal of the Memo. He did not comply.   In response to the first level grievance, Mr. Wilson was advised by Mr. Hodges in writing of the reason for the counseling memo and also advised: If you have information that I need to justify rescinding the counseling, please provide now or by 7/26/02. The Grievant did not provide documentation to justify his absences and the Counseling Memo was not removed..  At the Hearing, there was a claim that the Grievant was advised by his union representative that it was unnecessary to furnish documentation for his absences.  By his not providing documentation as requested, an adverse conclusion is drawn.  If the absences were justified, the Grievant made a poor decision. He should have brought evidence to justify his absences and if the absences were justified, the matter would have been resolved and the Memo rescinded.  The Grievant became ineligible to receive a cash bonus for Goal Sharing as a result of receiving formal counseling for sick leave usage during the goal sharing period.  In the past he had received such awards.

Mr. Wilson has a fine record as an employee during a span of twenty-six years.  In consideration of his record, if Mr. Wilson were to provide documentation that justified his use of care and bereavement absences during the six-month review period in question (as he should have done immediately upon receiving the Counseling Memo),  management might wish to consider revoking the memo retroactively and making him eligible for Goal Sharing.  However, let me make it clear that the Employer is under no obligation to do so.

The Union argued that progressive discipline required an oral warning prior to a written Memo.  Management argued that counseling memos are not discipline.  The definition of discipline in the Agreement does not include counseling for suspected sick leave abuse.  Furthermore, sick leave counseling is not discussed in Article 13 of the Agreement that deals with Discipline and Adverse Actions of employees.  Disciplinary actions are defined as admonishments, reprimands, and suspensions taken against employees for misconduct.

Although the contract does not require verbal discussion prior to a written memo for sick leave counseling, it would have been preferable to bring the suspicious patterns of absences to the Grievant’s attention earlier.

In his grievance, Mr. Wilson requested that the Counseling Memo be removed from his folder.  Unknown to him, the memo had been removed as a result of his showings substantial improvement in attendance during the four-month period following the issuance of the Counseling Memo. Notification should have been provided to Mr. Wilson as specified in the Collective Bargaining Agreement.

 The facts and testimony in evidence compel a finding that the Employer was justified in issuing a Counseling Memo to the Grievant. The Grievance is denied.   It is so ordered.

AWARD

Based on the evidence and testimony entered at the hearing, the Union’s grievance is denied. The Employer was justified under the Collective Bargaining Agreement in  issuing a Sick Leave Counseling letter to the Grievant..

State of New York )
                                )
County of Nassau  )    

I, Phyllis Almenoff, do hereby affirm that I am the individual described in and who executed this instrument which is my award.

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