IN THE MATTER OF:
______________________________________
AMERICAN FEDERATION OF )
GOVERNMENT EMPLOYEES ) FMCS CASE NO.:
) 08-58330
LOCAL NO. 1438 )
)
and )
)
U.S. DEPARTMENT OF COMMERCE )
U.S. CENSUS BUREAU, )
NATIONAL PROCESSING CENTER )
JEFFERSONVILLE, INDIANA )
)
OPINION AND AWARD
ARBITRATOR DAVID E. WILSON
APPEARANCES:
FOR THE UNION: Mr. Arnold Scott
National Vice President
AFGE – Sixth District
5674 Caito – Suite 100
Indianapolis, Indiana 46226
FOR THE AGENCY: Melissa Libertini Creech
U.S. Department of Commerce
Legal Office
Bureau of the Census
4600 Silver Hill Road
Washington, D.C. 20233
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Pursuant to the Collective Bargaining Agreement between the American Federation of
Government Employees Local 1438, AFL-CIO (Union) and the U.S. Department of
Commerce, U.S. Census Bureau, National Processing Center, Jeffersonville, Indiana
(Agency) the parties selected Arbitrator David E. Wilson to hear and decide the grievance
over the procedure for approving Leave With Out Pay. The parties have stipulated that
there are no procedural issues and the matter is properly before the Arbitrator. A hearing
was held on June 9, 2009 at the National Processing Center in Jeffersonville, Indiana.
Both parties were provided the opportunity to present witnesses and documentary
evidence. A transcript of the proceedings was taken and provided to the parties who
submitted post-hearing briefs which were exchanged by the Arbitrator on August 13,
2009
ISSUE
The issue as stipulated by the parties at the hearing is:
Did the Agency violate Article 6, Article 17.3, and/or Article 26.12 of the parties’
Labor Management Agreement (LMA), when Data Capture Branch Management
allegedly stated at an employee meeting that First Line Supervisors would not longer
grant Leave With Out Pay (LWOP) and that employees would be placed on AWOL
status (absent without leave) until documentation was submitted and approved by
Management.
Facts and Background
The Agency is part of the Executive Branch of the Federal Government and
consists of several bureaus, one of which is the Census Bureau. The National Processing
Center (NPC) for the Census Bureau is in Jeffersonville, Indiana and is responsible for
performing mail processing, data capture, geographic operations, call center support and
telephone interviewing in order to capture and collect demographic data, population
statistics, economic indicators, housing statistics, foreign trade information and other
statistical data from surveys.
One department within the NPC is the Data Capture Branch. Within most
departments of the NPC there are several layers of supervisory/managerial authority with
the typical chain of command consisting of First line Supervisors, Section Chiefs,
Assistant Branch Chief and Branch Chief.
Under the LMA there are various types of Leave including Annual Leave, Sick
Leave and Leave Without Pay (LWOP). The definition of Leave without pay found on
the Department of Commerce, Office of Human Resources Management Web page is:
“Leave without pay (LWOP) is an approved temporary absence from duty on a
non-pay status requested by an employee. The term does not cover a suspension,
furlough, and absence for which leave has not been approved, or non-pay status
during hours or days for which an employee would be compensated on an
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overtime basis.”
http://ohrm.os.doc.gov/Leave/dev01_000044
On February 4, 1999 Darrell Farabee, the then DCB Branch Chief issued a memorandum
that stated in relevant part:
“It is the policy of the Data Capture Branch Management that:
Without consultation, all leave (with the exception of annual vacation requests)
will be immediately approved by the first-line supervisor upon receipt of form SF-
71, Application for Leave.
No supporting statement (medical or employee written) will be ordinarily required
or requested by the supervisor for sick leave of three days or less, except when
this employee is on leave restriction.
The only basis for denial of annual leave requests is: “workload prohibits.”
There was no testimony that this Branch policy was negotiated with the union. The un-
rebutted testimony was that the policy was unilaterally established to respond to
complaints and to combat the delay of a particular supervisor in making decisions
regarding leave requests.
In 2002 the NPC merged the Census Operations Branch, the Automated
Operations Branch and the Data Capture Branch into one Branch which was named the
Data Capture Branch. The testimony established that the three former departments
continued to operate autonomously under the merger until Mr. Farabee retired in 2002.
Mr. Matt Aulbach, the Branch Chief of the Census Operations Branch assumed
responsibility for the keying operations formerly under the retired Mr. Farabee. In 2004,
Mr. Aulbach moved to another position within the NPC and the three merged branches
were now under one Branch Chief, Denise Anderson. Ms Anderson remained the Branch
Chief of DCB until sometime in 2006. In 2007 Joni Krohn assumed the position or DCB
Branch Chief.
At a Keying Section Quarterly Employee Meeting on June 14, 2007, DCB Branch
Chief Joni Krohn allegedly stated that “first line supervisors are no longer authorized to
grant LWOP, employees would be considered AWOL until documentation supporting the
LWOP was submitted and approved, and that just because documentation was submitted
there is no guarantee of approval.”
At the hearing the union presented testimony and documentary evidence of first
line supervisors approving LWOP. The Agency presented testimony that the since 2002
it has been the practice and policy in the DCB that Section Chiefs approve all LWOP
requests. The agency witnesses testified that first line supervisors at times have been
delegated the authority to grant LWOP during liberal leave periods or when serving as
the acting Section Chief.
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RELEVANT PROVISIONS OF THE AGREEMENT (JT. Exhibit 1)
Article 3 – EMPLOYER RIGHTS AND OBLIGATIONS
3.1 Rights of Management. Subject to Section 3.2, nothing in this Agreement shall
affect the authority of any Management official of the Employer –
(a) to determine the mission, budget, organization, number of employees, and
internal security practices of the Bureau; and
(b) in accordance with applicable laws-
1. to hire, assign, direct, lay off and retain employees in
the Bureau, or to suspend, remove, reduce in grade or
pay or take other disciplinary action against such
employees;
2. to assign work, to make determinations with respect to
contracting out, and to determine the personnel by
which Bureau operations are to be conducted.
(c) with respect to filling positions, to make selections for appointments from-
1. among properly ranked and certified candidates for
promotion; or
2. any other appropriate source.
(d) to take whatever actions may be necessary to carry out the Bureau’s mission
during emergencies.
3.2 Obligations Unser the Act. Nothing in this Agreement shall preclude the
Employer and the Union for negotiating-
(a) at the election of the Bureau, on the numbers, types, and grades of employees
or positions assigned to any organizational subdivision, work project or tour
of duty, or on the technology, methods, and means of performing work;
(b) procedures which management officials of the employer will observe in
exercising any authority under Section 3.1; or
(c) appropriate arrangements for employees adversely affected by the exercise of
any authority under Section 3.1 by such management officials.
Article 6 – RIGHT TO BARGAIN
Where, during the term of the Agreement, the Employer proposes to act on a
subject or matter negotiable under Section 7117 of the Act, but which involves no change
in the terms of this Agreement, the Employer will notify the Union in writing as far as
practicable in advance of the proposed effective date. Any requests by the Union to
bargain in connection with the proposed action will be directed to the ELRS in writing,
within 7 workdays following receipt of notification. Failure on the part of the Union to
respond within the 7- workday limit will constitute full acceptance of the Employer’s
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course of action. However, this 7-day limit may be extended by mutual agreement of the
parties.
Article 17 – LEAVE
17.3 Medical Documentation. Medical documentation will not ordinarily be required of
an employee absent as a result of an illness for 3 days or less; however, a supervisor may
request medical documentation for this leave due to illness of less than 3 days or may
accept a written statement from the employee.
Medical documentation will normally be required for leave usage in excess of 3 days;
however, if actual medical attention was not required, the supervisor(s) may accept a
written statement from the employee in lieu of such a certificate. The supervisor may
require a written statement from the employee, an OPM Form-71, “Request for Leave or
Approved Absence,” properly completed, or a medical certificate signed by a physician,
authorized practitioner, or other authorized medical personnel. The employee may
submit the medical documentation directly to the NPC Occupational Health Unit. The
employee has the responsibility to inform the supervisor they have done so. Approval of
sick leave is the responsibility of the supervisor.
For any period of sick leave for which documentation is required, such medical
documentation must include, at a minimum,
(a) certification that the employee was incapacitated for duty, or words to that effect,
(b) documentation stating the employee was under the care/treatment of the
physician, authorized practitioner, or other authorized medical personnel,
(c) dates of the absence,
(d) restrictions or limitations, if any, and/or time limits for restrictions or limitations,
and
(e) a return to duty date.
If the documentation is determined to be insufficient, the supervisor will, upon request,
inform the employee why the documentation is unacceptable.
If the employee visited the medical practitioner for routine/scheduled medical care or
exams, written confirmation of that visit may be requested by the supervisor.
If the supervisor is going to require medical documentation for leave of less than 3 days
on an ongoing basis, the employee will normally be placed on leave restriction and
advised of the requirement in the provisions of his/her leave restriction letter.
With supervisory approval, if an employee is on extended leave, arrangements may be
made so the employee is not required to call in daily.
A medical certificate does not necessarily constitute conclusive evidence of eligibility for
sick leave, but is a factor to be considered by appropriate supervisory officials in
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determining whether sick leave is justified under the circumstances involved.
17.5 Leave Without Pay
Short Term. Consistent with work requirements and a good leave record, the Employer
may approve requested short periods of LWOP not to exceed 15 days (i.e. 120 hours) in a
calendar year without the requirement to exhaust annual leave.
Long Term. The Employer may grant longer periods of LWOP, however the employee
may be asked to exhaust his/her appropriate existing leave first.
The decision to grant of not to grant such leave will not be subject to the grievance
procedure except where misapplication or violation of regulations is involved.
17.9 Leave Restriction. Leave restriction is not discipline but is designed to assist
employees in correcting attendance problems. Employees who have attendance problems
may be placed on leave restriction after documented counseling, based upon a review and
evaluation of their leave. Such restrictions will continue in effect until a marked
improvement is noted in the leave usage. However, it will not normally be extended
beyond one additional 90-day extension period.
Leave approved during a liberal leave usage period should not be counted against
employees for leave restriction purposes.
The granting of LWOP for personal or medical reasons is at the discretion of the
Employer. Therefore, in cases where attendance is unsatisfactory as a result of excessive
use of LWOP, any additional requests for LWOP during this period will normally be
disapproved.
Any unauthorized absence (AWOL) is a serious matter. An employee’s continued abuse
of leave regulations will provide the basis for disciplinary action.
Article 26 - MISCELANEOUS
26.12 Past Practice. It is agreed and understood that any prior benefit, practice or
understanding, whether or not specified in this Agreement, but which has been:
(a) clearly enunciated and acted upon; and
(b) readily ascertainable over a reasonable period of time as a fixed and
established practice accepted by both parties may not be changed without
giving notice under Article 6.
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Positions of the Parties
Union:
The union argues that the 1999 Farabee Memorandum and the testimony of the
witnesses clearly established a past practice of first line supervisors approving LWOP
requests. Union Exhibit 1 contained eleven LWOP requests which were signed and
approved by four different first line supervisors in the DCB between September of 2006
and April of 2007. By unilaterally changing this practice, the Agency has violated Article
6 of the Labor Management Agreement and the union’s right to bargain.
The Employee Handbook which was jointly developed by the Agency and the
Union reinforces the policy of first line supervisors reviewing and approving LWOP
requests. The call-in procedures for employees who are unable to report to work specify
that the employee must notify their supervisor as soon as possible. The term
“supervisor” is in reference to the first line supervisors.
By requiring documentation for all LWOP requests, the Agency is violating
Article 17.3 which clearly states that medical documentation will not ordinarily be
required of an employee absent as a result of illness of 3 days or less. This provision on
medical documentation was negotiated by the parties as evidenced by Union Exhibit 4
and cannot be unilaterally changed without negotiations with the union as provided in
Article 6 of the Labor Management Agreement.
In support of this argument the union submitted dictionary definitions of the words
ordinarily and normally.
Ordinarily: usually or as a general rule, in the usual manner.
Normally: most of the time, in the expected or customary manner.
(Union Exhibit 2)
By placing the employee on AWOL status until documentation is received and
approved, the agency is violating the clear meaning and intent Article 17.3 and exposing
the employees to unwarranted discipline. Requiring medical documentation for all
LWOP requests adversely effects the employees subjecting them to undue stress and
financial hardship,
The union requests that the Agency be directed to inform first line supervisors that they
have the authority to grant LWOP and any employees who have suffered harm by this
policy change be made whole.
The union further requests that the Agency be directed to comply with Article 6 and
Article 17.3 of the Labor Management Agreement.
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Agency:
The agency argues that the as party brining the grievance, the union has the
burden of proving their allegations by a preponderance of the evidence and has failed to
carry that burden.
Past Practice: Under Article 26.12 a Past Practice is a practice or understanding that is
clearly enunciated and acted upon and readily ascertainable over a reasonable period of
time as a fixed and established practice accepted by both parties.
The union has failed to establish that a past practice existed granting first line supervisors
the authority to approve LWOP requests. The Farabee memo was issued in 1999 before
the old Data Capture Branch was merged with the Census Operations Branch and the
Automated Operations Branch. The testimony and exhibits clearly established that
following the merger of the three branches the Farabee memo was not followed and
Section Chiefs reviewed and approved LWOP requests.
The eleven request slips authorized by 1st Line Supervisors (Union Exhibit 1) were either
signed by the supervisors during periods of liberal leave or when the supervisor was the
Acting Section Chief.
During periods when work loads are low, the Agency adopts a “Liberal Leave” policy
and employees are encouraged to take LWOP. During these periods supervisors are
given the authority to grant leaves. Agency Exhibit 1 documented internal
communication between Section Chiefs and 1st line supervision granting the authority to
authorize LWOP and terminating that authority when the liberal leave period ended. This
correspondence dated as early as April of 2004.
As set forth in 5 U.S.C Section 7106 (a)(2)(b) and recognized in Article 3.1 of the LMA,
management has the unfettered right to assign work. This right to assign work includes
the right to determine who shall perform certain tasks. The testimony and the
documentary evidence established that the DCB has historically assigned the
responsibility of approving LWOP based upon operational needs of the Agency. When
work volume is low and liberal leave policy is in effect, 1st line supervisors are delegated
the authority to approve LWOP. During high demand periods only Section Chiefs who
are familiar with the overall department’s needs are authorized to grant LWOP.
Medical Documentation: The agency contends that under the LMA and the 5 C.F.R.
Section 630.403 the agency has the right to require documentation for all leave requests.
Article 17.3 applies only to leave requests for absences due to illness and is not
applicable to LWOP requests for non-medical reasons.
According to the union’s written memorandum, the DCB Branch Chief stated that
“documentation” would be required for all LWOP requests. No where was it alleged or
proven that medical documentation was required. The testimony established that
documentation could consist of “self certification”, employee written statements
supporting the reason for the requested leave.
Page 8 of 11
The union did not produce any evidence of the agency requiring medical documentation
for LWOP requests.
The Agency maintains that the union has failed to establish by a preponderance of the
evidence that the Agency has violated Article 6, Article 17.3 or Article 26.12 of the
Labor Management Agreement.
Analysis and Award
The subject grievance arose from statements made at an employee meeting by the Data
Capture Branch Chief with respect to Leave With Out Pay requests. The statement can
be broken down into four separate parts:
1. First line supervisors are not authorized to grant LWOP (any LWOP must be
approved by the Section Chief).
2. Documentation must be provided to support any request for LWOP.
3. Just because documentation is submitted does not mean it will be approved.
4. Employees will be placed on AWOL status until documentation is provided.
1. First line supervisors are not authorized to grant LWOP (any LWOP must be
approved by the Section Chief).
Under Article 3.1 (b)(2) of the Labor Management Agreement and 5 U.S.C 7106
(A)(2)(B) the Agency has retained the right to “assign work, …and to determine the
personnel by which Bureau Operations are to be conducted. Delegation of duties among
supervisory and management employees, who by law and definition are outside the
bargaining unit, is a fundamental right of the Agency and is neither a mandatory subject
of bargaining nor grievable under the Labor Management Agreement.
Accordingly, the determination by the Agency that only Section Chiefs may authorize
Leave With Out Pay is a proper exercise of the Employer’s Rights and Obligations under
Article 3 absent specific language in the Agreement to the contrary or an established past
practice.
The Union asserts that the 1999 memorandum issued by the then DCB Branch Chief
Darrell Farabee and evidence of first line supervisors granting LWOP requests in the past
established a past practice that first line supervisors have the authority to grant LWOP
and that no documentation is required for LWOP of three days or less.
As argued by the Agency, the burden is on the union to prove by a preponderance of the
evidence that the alleged past practice was “clearly enunciated and acted upon and
readily ascertainable over a reasonable period of time as a fixed and established practice
accepted by both parties.” Veterans Administration Medical Center, Memphis, TN and
NAGE Local R5-66, No.89-08278, LAIRS 19538 (Mann, 1989).
Generally, an ad hoc policy by one supervisor or department does not establish a binding
past practice and must be distinguished from a mutual agreement or acquiescence by the
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contracting parties in a consistent course of repetitive action. Univac 54 LA 48, Volz.
The preponderance of the evidence established that the policy of first line supervisors
granting LWOP as outlined in the 1999 Farabee memorandum was not followed by the
Section Chiefs of the Census Operations Branch and the Automated Operations Branch
which were merged into the Data Capture branch in 2002.
Further the evidence established that once the merger of the branches was complete, the
consistent policy was that Section Chiefs were responsible for reviewing and approving
LWOP requests. The fact that during liberal leave periods the Section Chiefs delegated
this authority to first line supervisors does not create a binding past practice.
An individual supervisor may not be aware of the work load demands in other
departments, sections or branches of the Agency and it is a legitimate management
function of the Agency to determine what level of supervisor has the authority to grant
LWOP.
Accordingly, I find that the union has failed to prove the existence of a past practice by
the preponderance of the evidence and that there is no violation of the Labor
Management Agreement in the Agency assigning supervisory authority among the
different levels of management.
The remaining issues involve documentation.
2. Documentation must be provided to support any request for LWOP.
Under the LMA, Article 17.3 clearly states that “Medical documentation will not
ordinarily be required of an employee absent as a result of illness for 3 days or less.”
To require medical documentation for all LWOP requests would be a violation of Article
17.3.
However, the LMA and the practice of the parties distinguish medical documentation
from other forms of documentation such as a written statement from the employee.
It is entirely reasonable of the Agency to require documentation for all leave requests
provided it is not placing an undue burden or expense upon the employees. The Agency
witnesses credibly testified that documentation could be almost anything to verify the
need for the leave based upon the circumstances. Self Certification in the form of a
written statement is sufficient.
There was no evidence submitted of any employee being required to provide medical
documentation for LWOP requests of three days or less.
3. Just because documentation is submitted does not mean it will be approved.
Under the LMA, Section 17.3 “a medical certificate does not necessarily constitute
Page 10 of 11
conclusive evidence of eligibility for sick leave.” The above statement made at the
employee meeting is consistent with the language and intent of the LMA and is not a
violation of the agreement.
4. Employees will be placed on AWOL status until documentation is provided
AWOL status is defined as absent without leave, or any unauthorized absence. By
definition, until such time as the LWOP or other absence is approved, the employee is on
AWOL status. Affirming this fact at the employee meeting is not a violation of the
Agreement.
Based upon a review of the Labor Management Agreement, the testimony and documents
presented at the hearing and the post-hearing briefs submitted by the parties, I find that
the Agency did not violate Article 6, Article 17.3, and/or Article 26.12 of the parties’
Labor Management Agreement.
AWARD
Having received and considered all the evidence and arguments relevant to this matter, I
make the following award:
1. The Agency has not violated the Labor Management Agreement and the
grievance is denied
Dated: September 15, 2009
Cincinnati, OH ___________________________________
David E. Wilson, Arbitrator
AFFIRMATION
I, David E. Wilson, an attorney admitted to practice in the courts of the State of Ohio,
affirm, with full knowledge of the penalties for perjury, that the above document is my
Opinion and Award, and that I am the Arbitrator who executed the same.
September 15, 2009 _____________________________________
David E. Wilson
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