d.^V(p REGULAR REGIONAL ARBITRATION

In the Matter of the Arbitration

between

UNITED STATES POSTAL SERVICE

and

NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO

Grievant: Don Bennett

Post Office: Frankfort, KY

USPS Case #C06N-4C-C 10000054

BRANCH Case # BR09261

DRT Case #06-150490

BEFORE: Tobie Braverman ARBITRATOR

APPEARANCES:

For the U.S. Postal Service: Leslie Waller

For the Union: James W. Carl

Place of Hearing: Frankfort, KY

Date of Hearing: January 20, 2010

AWARD: The Grievance is sustained.

Date of Award: March 23, 2010

PANEL: USPS Eastern Area/ NALC Regions 6, 11 and 13

Award Summary

^ECEDWEO •":: 7 2010

VICE PRESIDENT'S OFHCE

NALC HEADQUARTERS

ELM §513.361 does not permit a blanket policy requiring verification of medical appointments for all scheduled sick leave requests. Verification may be requested for absences of three days or less only when an employee is on restricted sick leave or when the supervisor deems documentation desirable to protect the Employer's interest. This determination can only be made on a case by case basis.

Tobie Brm'erman

The instant case is submitted to the Arbitrator pursuant to the terms of the grievance

arbitration provisions of the Collective Bargaining Agreement of the parties. Hearing was held at

Frankfort, Kentucky on January 20, 2010. The parties submitted post-hearing briefs which were

received and exchanged by the Arbitrator on February 23, 2010. The parties stipulated that the

matter is properly before the Arbitrator. The parties were unable to agree upon a statement as to

the issue before the Arbitrator for decision. The issue, as framed by the Arbitrator is as follows:

Did the Postal Service violate Articles 5, 10 and 19 of the National Agreement by enacting

and enforcing a blanket requirement for proof of a medical appointment for approval of scheduled

sick leave, and if so, what is the appropriate remedy?

FACTS

The instant grievance arises out of a request for scheduled sick leave submitted by the

Grievant on September 19, 2009 requesting four and one half hours leave on September 23, 2009.

At the time of his request, the Grievant's supervisor, Brian Napier, neither approved nor

disapproved the request on the submitted Form 3971. Instead, Napier acknowledged receipt of

the request, and noted that its approval "awaited acceptable documentation". The documentation

anticipated was a medical appointment slip or card confirming that the Grievant in fact had a

medical appointment to justify the requested leave. The Grievant did not produce the

documentation as requested, and the leave was ultimately charged as unscheduled sick leave on

his attendance record.

There is a substantial dispute between the parties as to the basis and origin of the

2

requirement that letter carriers in the Frankfort, Kentucky postal facility submit documentation to

substantiate that they in fact have a medical appointment when requesting scheduled sick leave.

According to Postmaster Donald Hopper and Supervisor Brian Napier, this policy was instituted

as a Standard Operating Procedure by memorandum dated September 1, 2007. Its purpose was to

control what Hopper saw as an abuse of the sick leave system by employees who requested entire

days off for medical appointments. Hopper further tesfified that since implementation of the SOP

the situation has improved. According to these two witnesses, the new SOP was provided at the

time to the Union, and was discussed with employees at stand up talks as well as posted. Union

witnesses, on the other hand, dispute that either the Union or employees were ever advised of the

SOP. The union witnesses who testified stated that although they did provide appointment cards

as proof of appointments on a voluntary basis, they were wholly unaware of the SOP until it was

provided during the processing of this grievance. A number of unsworn written statements from a

former union steward and current letter carriers substantiate this claim.

Supervisor Napier testified that the Grievant had requested annual leave for September 23,

2009, which was denied. He suspected that the Grievant's subsequent request for sick leave was

an effort to obtain the leave which had been denied. There was, however, no documentary

evidence in the moving papers to support this contention, and Napier testified that the Grievant

ultimately withdrew the sick leave request and received annual leave. This is not borne out by the

Grievant's attendance records which, as previously noted, indicate that his absence was charged as

unscheduled sick leave. Napier further testified that in fact the denial of scheduled sick leave in

this case was not based upon the suspicion that the Grievant was misusing sick leave to obtain the

annual leave which he had been denied, but was based solely on the SOP's requirement for

3

documentation to verify a medical appointment. In fact, according to Napier, the fact that the

dates of the previous annual leave request and the subsequent scheduled sick leave request

coincided was not discovered until several weeks prior to arbitration.

Postmaster Hopper similarly testified that he believed that the Grievant was working the

system and that the Grievant had a warning regarding attendance on file. As with the

documentation regarding the Grievant's earlier annual leave request however, there is no

documentation as to that warning in the moving papers, and no such warning was proffered for

submission at hearing. The only evidence in the moving papers regarding the Grievant's

attendance is his 2009 attendance report which reflects three days of unscheduled sick leave for

2009 through September 23, 2009, the third of which is the date in question here. Hopper, like

Napier, acknowledged that the conversion of the requested time off from scheduled to

unscheduled sick leave was based on the SOP, not the Grievant's particular circumstances.

Rather than submit an appointment card, the Grievant sought out his Union steward to

contest the requirement. According to the Grievant's attendance records, the day in question was

charged to unscheduled sick leave. Although the Grievant had sufficient accumulated sick leave

to cover the time off and was paid for his absence, both parties agreed at hearing that the effect of

the charging of the time off to unscheduled rather than scheduled sick leave,

is its potential for consideration in future disciplinary action for excessive use of sick leave.

Both agreed that while unscheduled sick leave may lead to discipline, scheduled sick leave is

never considered in attendance disciplinary actions.

4

RELEVANT CONTRACTUAL PROVISIONS

ARTICLE 3 - MANAGEMENT RIGHTS

The Employer shall have the exclusive right, subject to the provisions of this Agreement and consistent with applicable laws and regulations: A. To direct employees of the Employer in the performance of official duties; ... C. To maintain the efficiency of the operations entrusted to it; D. To determine the methods, means, and personnel by which such operations are to be conducted;...

ARTICLE 5 - PROHIBITION OF UNILATERAL ACTION

The Employer will not take any actions affecting wages, hours an other terms and conditions of employment as defined in Section 8(d) of the National Labor Relations Act which violate the terms of this Agreement or are otherwise inconsistent with its obligations under law.

ARTICLE 10 - LEAVE

Section 2. Leave Regulations The leave regulations in Subchapter 510 of the Employee and Labor Relations Manual, insofar as such regulations establish wages, hours and working conditions of employees covered by this Agreement shall remain in effect for the life of this Agreement. ...

Section 5 Sick Leave The Employer agrees to continue the administration of the present sick leave program, which shall include the following specific items: ...

D. For periods of absence of three (3) days or less, a supervisor may accept an employee's certification as reason for an absence.

ARTICLE 19 - HANDBOOKS AND MANUALS

Those parts of all handbooks, manuals and published regulations of the Postal Service, that directly relate to wages, hours or working conditions, as they apply to employees covered by this Agreement, shall be continued in effect except that the Employer shall have the right to make changes that are not inconsistent with this Agreement and that are fair, reasonable, or equitable. This includes, but is not limited to, the Postal Service Manual and the F-21, Timekeeper's Instructions.

5

ELM

511.4 Unscheduled Absence 511.41 Definitions: Unscheduled Absences are any absences from work that are not requested and approved in advance.

330 Sick Leave 333 Authorization and Supporting Forms 333.2 Application for sick leave is made in writing ... on Form 3971. Supervisors are responsible for approving or disapproving applications for sick leave by signing the Form 3971 ... 333.3 Sick leave must be requested on Form 3971 and approved in advance by the appropriate supervisor, except for unexpected illness/injury situations. ...

PS Form 3971, Request for or Notification of Absence 513.342 Approval or Disapproval The supervisor is responsible for approving or disapproving requests for sick leave ... If a supervisor does not approve a request for leave as submitted, the Disapproval block on the PS Form 3971 is checked and the reason(s) given, in writing, in the space provided. ...

513.36 Sick Leave Documentation Requirements 513.361 Three Days or Less For periods of absence of 3 days or less, supervisors may accept the employee's statement explaining the absence. Medical documentation or other acceptable evidence of incapacity for work ... is required only when the employee is on restricted sick leave ... or when the supervisor deems documentation desirable for the protection of the interests of the Postal Service....

POSITIONS OF THE PARTIES

Union Position: The Union contends that it has met its burden of proof to demonstrate a

clear breach of the provisions of the National Agreement. The Frankfort, Kentucky post office's

procedure requiring verification of all medical appointments is in clear violation of the ELM,

which requires such verification only for absences of more than three days. While not all requests

6

for scheduled sick leave must be approved automatically, they must be considered on a case by

case basis pursuant to the standards set forth in the ELM. The requirement for verification is

appropriate pursuant to the ELM only when the employee is either on restricted sick leave or

when the supervisor reasonably determines that verification is necessary to protect the interests of

the Employer. The Frankfort procedure does not do this. The deviation from the ELM is

impermissible and the grievance should therefore be sustained.

Employer Poshion: The Employer argues that the Union has failed to meet its burden of

proof to demonstrate a breach of the National Agreement. The Union is attempting to limit the

rights reserved to management to effectively manage its operations through the grievance

procedure. The ELM does not address scheduled versus unscheduled sick leave. Rather, it

addresses approval or disapproval of sick leave by supervision. Supervision retains the right to

restrict the use of sick leave so long as those restrictions do not conflict with the ELM. In this

case, management has properly implemented a standard operating procedure which does not

request personal medical information, but only verification of the existence of a medical

appointment in order to prevent abuses of sick leave. Since the ELM is silent on this point, it is

well within the reserved management's rights of Article 3 to enact and enforce such a policy. The

grievance should be denied.

DISCUSSION AND ANALYSIS

This being a case of an alleged violation of the provisions of the National Agreement

between the parties, the burden rests with the Union to demonstrate that the Employer has violated

7

the provisions of the Agreement by requiring that the Grievant submit verification of a medical

appointment in order to be approved for scheduled sick leave. The crux of this case turns upon

whether or not the Union has demonstrated that the Frankfort SOP requiring the presentation of

verification of a medical appointment in order to gain approval of scheduled sick leave constitutes

a violation of the procedures regarding sick leave as set forth in the ELM.'

While the ELM does not specifically address the issue of approval of scheduled versus

unscheduled sick leave, it does address the circumstances in which medical documentation or

other verification regarding absences may be required for approval of sick leave. The ELM states

expressly that supervisors may accept the employee's application for sick leave without requiring

verification unless the employee is on restricted sick leave or in circumstances wherein the

supervisor determines that documentation is necessary to protect the interests of the Employer.

The ELM does not draw any distinction between scheduled and unscheduled sick leave in this

limitation on the requirements for production of verification for the use of sick leave. It merely

states a general rule regarding verification to be applied to all sick leave of three days or less.

Thus, unless an employee is on restricted leave, the Employer may only request verification to

support an absence if necessary to protect the interests of the Employer. In circumstances wherein

the protection of interests provision is invoked, the J-Cam notes that "[gjenerally to challenge

such a decision successfully the union should demonstrate that the supervisor acted arbitrarily,

capriciously or unreasonably in requiring the employee to obtain medical documentation. The

Union should be prepared to show that the grievant has a good overall sick leave record and no

' There is also a substantial dispute between the parties as to whether or not the SOP was properly enacted and presented to the Union and employees. Based upon the decision here, -however, it is not necessary to determine that issue.

8

record of abuse."

In this case, the Union has met its burden of proof to demonstrate that the Employer acted

arbitrarily and unreasonably in requiring verification for the scheduled sick leave requested by the

Grievant. The Grievant here clearly was not on restricted sick leave. Therefore, according to the

language of the ELM, in order to require verification for his requested absence, it was incumbent

upon the Employer to demonstrate that the request for verification of a medical appointment was

necessary to protect the interests of the Postal Service. Clearly, that request would be justified if

there were a reasonable suspicion that the Grievant was attempting to obtain time off under false

pretenses as testified to by Supervisor Napier at hearing. However, Napier further testified that

although he reached that conclusion several weeks prior to arbitration, at the time of the

requirement for verification, he was acting solely based upon the Frankfort SOP, not upon any

suspicions of the Grievant's particular request. The decision to require documentation was

unreasonable and arbitrary. There was simply no basis for the request other than the SOP's tacit

presumption that all requests for scheduled sick leave are questionable. The requirement for

verification was unreasonable since it was based upon a universal requirement for documentation

under circumstances not permitted by the language of the ELM.

Although not argued by the Employer in this case, it could be argued that the SOP

requiring verification for all requests for scheduled sick leave was enacted to protect the interests

of the Employer, and therefore appropriate pursuant to the ELM. This argument must fail,

however for two reasons. First, the ELM and JCAM clearly anticipate that these decisions must

be made on an individual basis. Both speak in terms of individual applications for sick leave and

review of the individual employee's attendance record. Further, the SOP as enacted does not

9

appear to be tailored to rectify the problem it was intended to address. Postmaster Hopper

testified that he initiated the requirement for verification of medical appointments in order to

control a problem of employees requesting entire shifts off to attend medical appointments. The

SOP however, does nothing to speak to the issue of the length of time requested, and requiring the

presentation of an appointment card does nothing to dernonstrate the amount of time required. If

the Employer reasonably suspects that an employee is requesting more time off than necessary,

the supervisor clearly can request verification as to the amount of time necessary pursuant to ELM

§513.361. Similarly, it the Employer reasonably suspects that there is no actual medical

appointment, the Supervisor may request verification pursuant to the ELM. The Employer may

not, however, require verification in all instances for absences of less than three days without any

basis for suspicion that the employee's explanation for the requested absence is in some way

illegitimate or suspect.

The Employer's SOP finally cannot be saved, as argued by the Employer, by the fact that it

requests only verification of a medical appointment rather than medical documentation. ELM

513.361, which controls requests for documentation, references not only medical documentation

but also "other acceptable evidence of incapacity to work". Clearly proof a medical appointment

falls within the definition of "other acceptable evidence". Again, however, that documentation

may only be required by the ELM when the employee is on restricted sick leave or when deemed

desirable to protect the interests of the Postal Service. This determination must be made on a case

by case basis and not pursuant to a blanket SOP.

The Employer finally contends that since sick leave was not disallowed but only converted

from scheduled to unscheduled, the provisions of the ELM are inapplicable. This argument must

10

be rejected. The ELM controls the circumstances in which verification for sick leave may be

required. It is not relevant that sick leave is categorized as scheduled or unscheduled. What is

relevant under the ELM is that a request for medical documentation or other verification may only

be made in certain defined circumstances. The Employer's SOP goes beyond the bounds

permitted by the ELM by creating a blanket requirement which does not take into account the

individual circumstances which must be considered in each case before verification may be

required for any absence, scheduled or unscheduled, of three days or less.

AWARD

The Grievance is sustained. The Grievant's request for scheduled sick leave on September

19, 2009 shall be converted to scheduled sick leave and the Employer shall cease application of its

blanket policy requiring verification of appointments for approval of scheduled sick leave requests

for medical appointments.

Dated: March 23. 2010 / ^ ^ Tobie Braviferman, Arbitrator

11