Title: Veterans Affairs Medical Center and AFGE
FEDERAL MEDIATION AND CONCILIATION SERVICE
For the Employer
Meredith, HR Specialist
For the Union
DR. PHYLLIS ALMENOFF, ARBITRATOR
DECISION AND AWARD
by the Employer
T. Rasco, Jr.
by the Union
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.
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.
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.
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.
OF THE ISSUE
parties stipulated to the following issue in this case:
the Employer justified under the terms of the Collective Bargaining Agreement
when it issued a “Sick Leave Counseling” memo to the grievant?
not, what shall be the remedy?
grievance (Joint Exhibit 3) states the following:
Employee’s Statement of
am filing a grievance because I feel I received
an unjust counseling memo (VA Form 2105.)
Article 32 Section 18: A2 and B5
I want counseling
removed from my folder.
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.
Union demanded arbitration.
sections of the Collective Bargaining Agreement which relate to this issue are
16 – EMPLOYEE RIGHTS
1 – General
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.
* * *
40 – ARBITRATION
2 – Conventional Arbitration Procedure
* * *
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.
* * *
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
The arbitrator, after contacting both parties and arranging for the hearing date
time and place, shall conduct the hearing pursuant to the following guidelines:
The hearing shall be informal,
There shall be no formal rules of evidence applied,
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
* * *
42 – GRIEVANCE PROCEDURE
* * *
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
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.
* * *
32 – TIME AND LEAVE
1 – General
Employees will accrue and use sick and annual leave in accordance with
applicable statutes, OPM regulations, and this Agreement.
* * *
Employees should request, in advance, approval of anticipated leave
* * *
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.
5 – Documentation for Sick Leave
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:
* * *
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.
6 – Leave Misrepresentation
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.
* * *
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.
If the abuse continues, the employee may be required to furnish a medical
certification for each sick leave application.
All such cases requiring a counseling or medical certification may be
reviewed in four (4) months but not later than six (6) months afterward.
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.
18 – Family Friendly Leave
Employees may us up to forty (40) hours of sick leave in a year under the
Federal Employee Friendly Leave Act:
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
For purposes relating to the death of a family member, including making
arrangements for and attending the funeral of such family member.
Family member is defined as:
* * *
Any individual related by blood or affinity whose close association with
the employee is the equivalent of a family member.
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.
* * *
20 – Leave for Bereavement
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.
SHARING AWARD PROGRAM (Joint Exhibit 4)
Goal Sharing period of time: April
1, 2002 – September 30, 2002
meets ALL of the following to receive the award.
* * *
is satisfactory. (No formal counseling for tardiness or sick leave usage
counseling or formal leave restriction during the goal sharing period).
* * *
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
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.
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
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.
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.
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.
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.
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.
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.
OF THE PARTIES
of the Employer
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:
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.
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.
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.
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
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.
Family Friendly Leave Days are paid sick leave bank days and are subject
to the same restrictions as sick leave.
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.
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
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
of the Union
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
The Grievant is a very good employee who has been with the Veterans
Administration for twenty-six years. He
has never been disciplined.
The Grievant is not a sick leave abuser.
He has 103 days in his sick bank.
There was no progressive discipline prior to issuing the Counseling Memo.
The Grievant was not advised of an attendance problem orally prior to his
receiving the written Counseling Memo.
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.
Documentation for the
absences was only requested after the Union became involved.
The Grievant is not eligible for a Goal Sharing bonus as a result of the
Family Medical Leave and Family Friendly Leave are very confusing. Clear
explanation and guidelines for their use should be developed.
OF THE EVIDENCE
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
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
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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..
of New York )
Phyllis Almenoff, do hereby affirm that I am the individual described in and who
executed this instrument which is my award.
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028