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FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 95-05639

AFGE LOCAL 987,


Union,

and

DEPARTMENT OF THE AIR FORCE,


WARNER ROBINS AIR LOGISTICS CENTER,
Agency.
__________________________________________/

OPINION OF THE ARBITRATOR

September 18, 1995

After a Hearing Held July 14, 1995


At Warner Robins Air Logistics Center
Robins Air Force Base, Georgia
Opinion of the Arbitrator

Grievant, William R. Willis, is employed as a machinist by the Department of

the Air Force at Warner Robins Air Logistics Center ("Agency"). Grievant is a

member of Local 987 of the American Federation of Government Employees

("Union"). The rights and obligations vis-a-vis Grievant and the Agency are governed

by the Master Labor Agreement ("MLA"), which was introduced at the arbitration

hearing as JX 1. Air Force Regulations 40-630 and 40-750 also govern and were

introduced as JX 5 and JX 4, respectively.

Sometime during the week beginning July 24, 1994 (the precise date is

unclear, as is discussed more fully below), Grievant called in and asked to be placed

on sick leave. During the latter part of the work week beginning August 1, 1994,

Grievant's supervisor, Nedam E. Walker ("Supervisor"), attempted to contact

Grievant. The Supervisor was aware that Grievant worked at Peach Auto Painting

and Collision ("Peach Auto"), when not working at the Agency, and the Supervisor

located him there.

The Supervisor asked Grievant when Grievant was planning on returning to

work at the Agency. Grievant indicated that he had a doctor's certificate to be out for

two weeks. When Grievant returned to work on August 8, 1994, the Supervisor

interviewed Grievant about working at Peach Auto when Grievant supposedly was

too ill to work at the Agency. Grievant replied that he had only to sit at a desk on his

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job at Peach Auto.

The Supervisor informed Grievant that the Supervisor had recorded Grievant

as being AWOL (JX 3, p 14, Memo for Record dated August 8, 1994) on Agency

attendance records (JX 3, p 11). By Memorandum dated August 18, 1994, the

Agency proposed to suspend Grievant for 10 days, for unauthorized absence on

August 4 and 5, 1994 (JX 3, p 12). Grievant replied, with the assistance of a Union

representative, in a writing dated September 21, 1994 (see JX 3, p 9, ¶ 2), but the

reply was not submitted into evidence at the arbitration hearing and so is not before

the Arbitrator.

By Memorandum dated October 13, 1994 (JX 3, p 9), the Agency notified

Grievant that he was being suspended for 10 days, beginning October 17, 1994, and

ending October 26, 1994, for unauthorized absence on August 4 and 5, 1994.

Grievant responded by filing AFMC Form 913, Standard Grievance Record (see JX

3, pp 5-6), claiming reliance on Article 24 of the MLA, covering Sick Leave (JX 1,

pp 101-104), AFR 40-630, and any and all governing Regulations (JX 3, p 6). Acting

pursuant to Article 6, §6.07 of the MLA, by letter dated October 19, 1994 (JX 3, pp

3-4), the Union pursued the grievance.

The Agency responded to the grievance in a letter dated November 8, 1994

(JX 3, pp 7-8), which recites that a Step 2 meeting was held November 1, 1994 (see

MLA, Article 6, §6.07.b; JX 1, p 28). Again acting pursuant to Article 6, §6.07 of the

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MLA (see JX 1, pp 28-29), by letter dated November 15, 1994, the Union appealed

(JX 3, p 2). The Agency rendered a final denial of the grievance, by letter dated

December 6, 1994 (JX 3, p 1). The Union requested arbitration under MLA, Article 7

(JX 1, pp 32-39).

Difficulties Encountered

The facts of the matter are unclear. Consider, for example, the issue as to the

date Grievant called in and asked to be placed on sick leave. The record contains the

following evidence:

1. In JX 3 on p 3, in the Union's letter of October 19, 1994, the Union asserts that
Grievant called in on July 24, 1994.

2. In JX 3 on p 7, the Agency asserts that the date was July 28, 1994.

3. Again, in JX 3 on p 12, the Agency asserts that Grievant called in on July 28,
1994.

4. In JX 3 on p 15, the Supervisor asserts that the date was July 28, 1994.

5. At the hearing held on July 14, 1995, Grievant testified that he called in on
July 26, 1994.

In the face of such conflicting evidence, the Arbitrator's task becomes difficult, if not

impossible.

Scope of the Arbitration

In an effort to contain the scope of the arbitration, the Arbitrator gives a

narrow interpretation to the issue presented by the parties at the arbitration hearing as

JX 2:

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Was the 10 day suspension of Mr. William R. Willis for unauthorized absence
am 4 and 5 August 1994 issued for just cause? If not what should the remedy
be?

Preliminary Observations

Although Grievant claims that he asked to be put on sick leave (see JX 3, pp 3-

4), at the hearing, he testified that he had no accumulated sick leave. The Agency

makes this point on the first page of its brief. AFR 40-630, Chapter 4, §4-1, a copy of

which is attached to the Agency's brief, provides in pertinent part:

LWOP is -a temporary nonpay status and an authorized absence from duty


granted … when the employee has insufficient … sick leave … available to
cover an approved absence.

At the hearing, Grievant testified that he asked to be placed on LWOP status,

after initially having sought sick leave. The Agency's time records reflect that

Grievant was classified as being on LWOP during the first part of his absence (JX 3,

p 11). The Union makes no complaint over Grievant's initial classification as having

LWOP status. The import of these remarks is that, in so far as Grievant's absence on

August 4 and 5, 1994 is concerned, the most Grievant could hope to gain through

arbitration is a change in status from AWOL to LWOP.

Grievant's Allegations

During the course of the telephone conversation which took place on August

4, 1994, Grievant informed the Supervisor that Grievant had a doctor's certificate

excusing Grievant from work for two weeks. The Supervisor requested a copy of the

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doctor's certificate. According to the Union's brief, "The grievant complied with the

supervisor's request and promptly sent it to him." See generally the first page of the

Union's brief; (JX 3, p 16) It is a fair inference from representations made by the

Union during the grievance procedure, that Grievant sent the doctor's certificate (JX

3, p 16) to the Supervisor on the evening of August 5, 1994 (JX 3, p 3) ("The

following night, Mr. Willis sent the excuse to Mr. Walker by a co-worker.").

The Union alleges that "Mr. Walker refused to accept the doctor's certificate."

Union brief, second page. This allegation overlooks the fact that the doctor's

certificate (JX 3, p 16) is facially invalid. AFR 40-630, Chapter 3, §3-4.b (JX 5),

provides in pertinent part:

Sick leave of more than 3 consecutive workdays must be supported by medical


documentation unless the supervisor specifically waives this requirement. The
medical documentation must be administratively acceptable to the supervisor,
must cover all absence beyond the third workday, and show specific evidence
that the employee was incapacitated for duty for the entire period covered by
the statement. As a minimum, the physician should be requested to provide a
diagnosis and an estimate of the expected date of full or partial recovery ….
Where evidence does not justify the approval of sick leave, the absence may
be charged to … AWOL, or LWOP.

When measured against this governing standard, it is clear that this doctor's

certificate does not pass muster. For example, among its many defects is a lack of any

diagnosis of Grievant's medical condition. During the course of the grievance

procedure, Grievant sought to supplement the original doctor's certificate (JX 3, p 16)

with a copy of the doctor's bill (JX 3, p 18), which purports to contain a diagnosis.

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However, the handwritten "diagnosis" is illegible, and neither at the hearing nor in

post-hearing brief did Grievant provide any insight into the doctor's diagnosis. At the

hearing, Grievant introduced another doctor's certificate (UX 8) dated June 23, 1995,

having even more defects than the original certificate (JX 3, p 16), among them being

a lack of diagnosis.

On the second page of Grievant's brief, Grievant further alleges that the

Supervisor "failed to process the grievant through the base medical facility, or seek

any competent medical advice or opinion concerning the matter." In support of

Grievant's position, the Union quotes AFR 40-630, Chapter 3, §3-4.b (JX 5), which

provides in pertinent part:

If there is any doubt as to the validity or adequacy of the medical


documentation presented to support a request for sick leave, the medical
officer at the installation may be requested to review the documentation
submitted and to consult the employee's physician for additional information.

There are several weaknesses with Grievant's Position.

First, the quoted language is precatory, not mandatory; it does not compel the

Agency to consult with the installation's medical officer. Perhaps more importantly,

the Agency has sought Grievant's permission to contact Grievant's physician, in order

to obtain additional information about Grievant's medical condition. Grievant has

refused to grant such permission; indeed, Grievant so testified at the hearing. It is

incongruous for Grievant to assert that the Agency "failed to Process the grievant

through the base medical facility, or seek any competent medical advice or opinion

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concerning the matter," while at the same denying the Agency access to his medical

history. Before Grievant can demand justice, he must be prepared to do justice

himself.

In so far as the propriety of the Agency classifying Grievant as AWOL on

August 4 and 5, 1994 is concerned, it is instructive to consider the language of AFR

40-630, Chapter 4, §4-1, a copy of which is attached to the Agency's brief and which

provides in pertinent part:

[LWOP] must not be confused with absence without leave (AWOL) which is
charged for unauthorized absence or absence for which the employee's leave
request was denied or unjustified.

The quoted language certainly indicates that the Agency was acting within the scope

of its authority in classifying Grievant as AWOL for "unauthorized absence or

absence for which the employee's leave request was denied or unjustified."

Grievant fails to address adequately AFR 40-630, Chapter 3, §3-4.h (JX 5),

which provides in pertinent part:

As a general rule, sick leave is not approved for a period of absence during
which an employee engages in outside employment. Exception is made when
the nature of the employee's illness or disability and the nature of the outside
employment make it clearly evident that the employee is still incapacitated for
the regular job even though engaging in outside employment. However, before
engaging in outside employment during a period of sick leave, the employee
must notify the leave approving official of the nature of the employment and
furnish acceptable evidence that they are still incapacitated for duty. …

At most, on the third page of Grievant's brief, Grievant asserts that he "was

never informed by anyone as to outside work." The record does not support such an

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assertion; in particular, Grievant did not so testify. Moreover, even assuming that

Grievant were entitled to some sort of individualized notice about the terms of the

MLA (and the record reveals no such entitlement), as between these parties, it would

be the Union's responsibility to notify him. Grievant has not demonstrated

compliance with AFR 40-630, Chapter 3, §3-4.h. Importantly, it is undisputed that

Grievant did not obtain prior permission to engage in outside employment or obtain a

medical clearance before doing so. Grievant simply decided on his own to take off

from his job at the Agency and to work at Peach Auto.

The Union attached three unsworn statements and copies of what are alleged

to be business cards of Agency employees who engage in work outside the Agency.

These materials were not adduced at the hearing and have no foundation. Even if they

were received into evidence, they would have no probative value. The Agency never

has taken the position that employees may not have outside interests; all that is

required is that they pursue those interests at appropriate times so as not to interfere

with their responsibilities at the Agency.

The 10-day Suspension

Grievant has not addressed the issue of whether, if he was AWOL August 4

and 5, 1994, the Agency acted within the scope of its authority in suspending him for

10 days, pursuant to AFR 40-750; see JX 4, p 23, ¶ 4. Therefore, the Arbitrator need

not address the issue. In suspending Grievant for 10 days, the Agency took into

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account a prior disciplinary action against Grievant (JX 4, p 23; JX 3, p 12, ¶ 3), as it

is authorized to do.

Conclusion

Following attendance at the hearing held July 14, 1995 (no transcript was

made), review of exhibits and notes of the hearing, and study of the parties' briefs, the

grievance is denied and the action of the Agency is sustained.

Dated: September 18, 1995 ________________________


E. Frank Cornelius, Arbitrator

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