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d.^V(p                            REGULAR REGIONAL ARBITRATION                                                      Grieva...
The instant case is submitted to the Arbitrator pursuant to the terms of the grievancearbitration provisions of the Collec...
requirement that letter carriers in the Frankfort, Kentucky postal facility submit documentation tosubstantiate that they ...
documentation to verify a medical appointment. In fact, according to Napier, the fact that thedates of the previous annual...
RELEVANT CONTRACTUAL PROVISIONSARTICLE 3 - MANAGEMENT RIGHTSThe Employer shall have the exclusive right, subject to the pr...
ELM       511.4 Unscheduled Absence       511.41 Definitions:       Unscheduled Absences are any absences from work that a...
for scheduled sick leave must be approved automatically, they must be considered on a case bycase basis pursuant to the st...
the provisions of the Agreement by requiring that the Grievant submit verification of a medicalappointment in order to be ...
record of abuse."       In this case, the Union has met its burden of proof to demonstrate that the Employer actedarbitrar...
appear to be tailored to rectify the problem it was intended to address. Postmaster Hoppertestified that he initiated the ...
be rejected. The ELM controls the circumstances in which verification for sick leave may berequired. It is not relevant th...
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C-28726

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Arbitration decision where the arbitrator deemed that the USPS did not have the right to institute a blanket policy requiring employees to prove they had a medical appointment before the appointment.

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C-28726

  1. 1. d.^V(p REGULAR REGIONAL ARBITRATION Grievant: Don Bennett In the Matter of the Arbitration Post Office: Frankfort, KY between USPS Case #C06N-4C-C 10000054 UNITED STATES POSTAL SERVICE BRANCH Case # BR09261 and DRT Case #06-150490 NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO BEFORE: Tobie Braverman ARBITRATOR APPEARANCES: For the U.S. Postal Service: Leslie Waller For the Union: James W. Carl ^ECEDWEO Place of Hearing: Frankfort, KY •":: 7 2010 Date of Hearing: January 20, 2010 VICE PRESIDENTS OFHCE NALC HEADQUARTERS AWARD: The Grievance is sustained.Date of Award: March 23, 2010PANEL: USPS Eastern Area/ NALC Regions 6, 11 and 13 Award Summary ELM §513.361 does not permit a blanket policy requiring verification of medicalappointments for all scheduled sick leave requests. Verification may be requested for absences ofthree days or less only when an employee is on restricted sick leave or when the supervisor deemsdocumentation desirable to protect the Employers interest. This determination can only be madeon a case by case basis. Tobie Brmerman
  2. 2. The instant case is submitted to the Arbitrator pursuant to the terms of the grievancearbitration provisions of the Collective Bargaining Agreement of the parties. Hearing was held atFrankfort, Kentucky on January 20, 2010. The parties submitted post-hearing briefs which werereceived and exchanged by the Arbitrator on February 23, 2010. The parties stipulated that thematter is properly before the Arbitrator. The parties were unable to agree upon a statement as tothe 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 enactingand enforcing a blanket requirement for proof of a medical appointment for approval of scheduledsick leave, and if so, what is the appropriate remedy? FACTS The instant grievance arises out of a request for scheduled sick leave submitted by theGrievant on September 19, 2009 requesting four and one half hours leave on September 23, 2009.At the time of his request, the Grievants supervisor, Brian Napier, neither approved nordisapproved the request on the submitted Form 3971. Instead, Napier acknowledged receipt ofthe request, and noted that its approval "awaited acceptable documentation". The documentationanticipated was a medical appointment slip or card confirming that the Grievant in fact had amedical appointment to justify the requested leave. The Grievant did not produce thedocumentation as requested, and the leave was ultimately charged as unscheduled sick leave onhis attendance record. There is a substantial dispute between the parties as to the basis and origin of the 2
  3. 3. requirement that letter carriers in the Frankfort, Kentucky postal facility submit documentation tosubstantiate 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 institutedas a Standard Operating Procedure by memorandum dated September 1, 2007. Its purpose was tocontrol what Hopper saw as an abuse of the sick leave system by employees who requested entiredays off for medical appointments. Hopper further tesfified that since implementation of the SOPthe situation has improved. According to these two witnesses, the new SOP was provided at thetime to the Union, and was discussed with employees at stand up talks as well as posted. Unionwitnesses, on the other hand, dispute that either the Union or employees were ever advised of theSOP. The union witnesses who testified stated that although they did provide appointment cardsas proof of appointments on a voluntary basis, they were wholly unaware of the SOP until it wasprovided during the processing of this grievance. A number of unsworn written statements from aformer 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 Grievants subsequent request for sick leave wasan effort to obtain the leave which had been denied. There was, however, no documentaryevidence in the moving papers to support this contention, and Napier testified that the Grievantultimately withdrew the sick leave request and received annual leave. This is not borne out by theGrievants attendance records which, as previously noted, indicate that his absence was charged asunscheduled sick leave. Napier further testified that in fact the denial of scheduled sick leave inthis case was not based upon the suspicion that the Grievant was misusing sick leave to obtain theannual leave which he had been denied, but was based solely on the SOPs requirement for 3
  4. 4. documentation to verify a medical appointment. In fact, according to Napier, the fact that thedates of the previous annual leave request and the subsequent scheduled sick leave requestcoincided was not discovered until several weeks prior to arbitration. Postmaster Hopper similarly testified that he believed that the Grievant was working thesystem and that the Grievant had a warning regarding attendance on file. As with thedocumentation regarding the Grievants earlier annual leave request however, there is nodocumentation as to that warning in the moving papers, and no such warning was proffered forsubmission at hearing. The only evidence in the moving papers regarding the Grievantsattendance is his 2009 attendance report which reflects three days of unscheduled sick leave for2009 through September 23, 2009, the third of which is the date in question here. Hopper, likeNapier, acknowledged that the conversion of the requested time off from scheduled tounscheduled sick leave was based on the SOP, not the Grievants particular circumstances. Rather than submit an appointment card, the Grievant sought out his Union steward tocontest the requirement. According to the Grievants attendance records, the day in question wascharged to unscheduled sick leave. Although the Grievant had sufficient accumulated sick leaveto cover the time off and was paid for his absence, both parties agreed at hearing that the effect ofthe 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 isnever considered in attendance disciplinary actions. 4
  5. 5. RELEVANT CONTRACTUAL PROVISIONSARTICLE 3 - MANAGEMENT RIGHTSThe Employer shall have the exclusive right, subject to the provisions of thisAgreement 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 areto be conducted;...ARTICLE 5 - PROHIBITION OF UNILATERAL ACTIONThe Employer will not take any actions affecting wages, hours an other terms andconditions of employment as defined in Section 8(d) of the National LaborRelations Act which violate the terms of this Agreement or are otherwiseinconsistent with its obligations under law.ARTICLE 10 - LEAVESection 2. Leave RegulationsThe leave regulations in Subchapter 510 of the Employee and Labor RelationsManual, insofar as such regulations establish wages, hours and working conditionsof employees covered by this Agreement shall remain in effect for the life of thisAgreement. ...Section 5 Sick LeaveThe Employer agrees to continue the administration of the present sick leaveprogram, which shall include the following specific items: ... D. For periods of absence of three (3) days or less, a supervisor may accept an employees certification as reason for an absence.ARTICLE 19 - HANDBOOKS AND MANUALSThose parts of all handbooks, manuals and published regulations of the PostalService, that directly relate to wages, hours or working conditions, as they apply toemployees covered by this Agreement, shall be continued in effect except that theEmployer shall have the right to make changes that are not inconsistent with thisAgreement and that are fair, reasonable, or equitable. This includes, but is notlimited to, the Postal Service Manual and the F-21, Timekeepers Instructions. 5
  6. 6. 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 employees 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 aclear breach of the provisions of the National Agreement. The Frankfort, Kentucky post officesprocedure 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
  7. 7. for scheduled sick leave must be approved automatically, they must be considered on a case bycase basis pursuant to the standards set forth in the ELM. The requirement for verification isappropriate pursuant to the ELM only when the employee is either on restricted sick leave orwhen the supervisor reasonably determines that verification is necessary to protect the interests ofthe Employer. The Frankfort procedure does not do this. The deviation from the ELM isimpermissible and the grievance should therefore be sustained. Employer Poshion: The Employer argues that the Union has failed to meet its burden ofproof to demonstrate a breach of the National Agreement. The Union is attempting to limit therights reserved to management to effectively manage its operations through the grievanceprocedure. The ELM does not address scheduled versus unscheduled sick leave. Rather, itaddresses approval or disapproval of sick leave by supervision. Supervision retains the right torestrict the use of sick leave so long as those restrictions do not conflict with the ELM. In thiscase, management has properly implemented a standard operating procedure which does notrequest personal medical information, but only verification of the existence of a medicalappointment in order to prevent abuses of sick leave. Since the ELM is silent on this point, it iswell within the reserved managements rights of Article 3 to enact and enforce such a policy. Thegrievance should be denied. DISCUSSION AND ANALYSIS This being a case of an alleged violation of the provisions of the National Agreementbetween the parties, the burden rests with the Union to demonstrate that the Employer has violated 7
  8. 8. the provisions of the Agreement by requiring that the Grievant submit verification of a medicalappointment in order to be approved for scheduled sick leave. The crux of this case turns uponwhether or not the Union has demonstrated that the Frankfort SOP requiring the presentation ofverification of a medical appointment in order to gain approval of scheduled sick leave constitutesa 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 versusunscheduled sick leave, it does address the circumstances in which medical documentation orother verification regarding absences may be required for approval of sick leave. The ELM statesexpressly that supervisors may accept the employees application for sick leave without requiringverification unless the employee is on restricted sick leave or in circumstances wherein thesupervisor 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 thislimitation on the requirements for production of verification for the use of sick leave. It merelystates 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 tosupport an absence if necessary to protect the interests of the Employer. In circumstances whereinthe protection of interests provision is invoked, the J-Cam notes that "[gjenerally to challengesuch a decision successfully the union should demonstrate that the supervisor acted arbitrarily,capriciously or unreasonably in requiring the employee to obtain medical documentation. TheUnion 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 wasproperly enacted and presented to the Union and employees. Based upon the decision here, -however, it is not necessary to determine that issue. 8
  9. 9. record of abuse." In this case, the Union has met its burden of proof to demonstrate that the Employer actedarbitrarily and unreasonably in requiring verification for the scheduled sick leave requested by theGrievant. The Grievant here clearly was not on restricted sick leave. Therefore, according to thelanguage of the ELM, in order to require verification for his requested absence, it was incumbentupon the Employer to demonstrate that the request for verification of a medical appointment wasnecessary to protect the interests of the Postal Service. Clearly, that request would be justified ifthere were a reasonable suspicion that the Grievant was attempting to obtain time off under falsepretenses as testified to by Supervisor Napier at hearing. However, Napier further testified thatalthough he reached that conclusion several weeks prior to arbitration, at the time of therequirement for verification, he was acting solely based upon the Frankfort SOP, not upon anysuspicions of the Grievants particular request. The decision to require documentation wasunreasonable and arbitrary. There was simply no basis for the request other than the SOPs tacitpresumption that all requests for scheduled sick leave are questionable. The requirement forverification was unreasonable since it was based upon a universal requirement for documentationunder circumstances not permitted by the language of the ELM. Although not argued by the Employer in this case, it could be argued that the SOPrequiring verification for all requests for scheduled sick leave was enacted to protect the interestsof 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 mustbe made on an individual basis. Both speak in terms of individual applications for sick leave andreview of the individual employees attendance record. Further, the SOP as enacted does not 9
  10. 10. appear to be tailored to rectify the problem it was intended to address. Postmaster Hoppertestified that he initiated the requirement for verification of medical appointments in order tocontrol a problem of employees requesting entire shifts off to attend medical appointments. TheSOP however, does nothing to speak to the issue of the length of time requested, and requiring thepresentation of an appointment card does nothing to dernonstrate the amount of time required. Ifthe 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 medicalappointment, the Supervisor may request verification pursuant to the ELM. The Employer maynot, however, require verification in all instances for absences of less than three days without anybasis for suspicion that the employees explanation for the requested absence is in some wayillegitimate or suspect. The Employers SOP finally cannot be saved, as argued by the Employer, by the fact that itrequests only verification of a medical appointment rather than medical documentation. ELM513.361, which controls requests for documentation, references not only medical documentationbut also "other acceptable evidence of incapacity to work". Clearly proof a medical appointmentfalls within the definition of "other acceptable evidence". Again, however, that documentationmay only be required by the ELM when the employee is on restricted sick leave or when deemeddesirable to protect the interests of the Postal Service. This determination must be made on a caseby case basis and not pursuant to a blanket SOP. The Employer finally contends that since sick leave was not disallowed but only convertedfrom scheduled to unscheduled, the provisions of the ELM are inapplicable. This argument must 10
  11. 11. be rejected. The ELM controls the circumstances in which verification for sick leave may berequired. It is not relevant that sick leave is categorized as scheduled or unscheduled. What isrelevant under the ELM is that a request for medical documentation or other verification may onlybe made in certain defined circumstances. The Employers SOP goes beyond the boundspermitted by the ELM by creating a blanket requirement which does not take into account theindividual circumstances which must be considered in each case before verification may berequired for any absence, scheduled or unscheduled, of three days or less. AWARD The Grievance is sustained. The Grievants request for scheduled sick leave on September19, 2009 shall be converted to scheduled sick leave and the Employer shall cease application of itsblanket policy requiring verification of appointments for approval of scheduled sick leave requestsfor medical appointments.Dated: March 23. 2010 / ^ ^ Tobie Braviferman, Arbitrator 11

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