This is a summary from an arbitration decision regarding the Postal Service’s decision to discharge a Postal Clerk for Improper Conduct/Providing False-Inaccurate Information on PS. Form 3971 (Request For Leave). The USPS charged Postal Clerk with using FMLA to work second job. This is a summary from an arbitration decision regarding the Postal Service’s decision to discharge a Postal Clerk for Improper Conduct/Providing False-Inaccurate Information on PS. Form 3971 (Request For Leave). The arbitrator sustained the Union’s grievance and returned the grievant to work with back pay, less any compensation received during the period of removal.
The Grievant filed a Certification of a Serious Health Condition for FMLA protected leave from 2007. This document allowed the Grievant intermittent absences, between four (4) and six (6) times a month, based on a chronic health condition. Sometime in late 2008 the grievant’s supervisor was informed that Grievant had been found asleep on the job. Supervisor Mulhall investigated the incident, interviewed the Grievant, who stated that he had a second job and was extremely tired. The Postal Service contacted the Office of Inspector General (OIG) and expressed his concern about the Grievant’s possible misuse of FMLA Sick Leave. Eventually the grievant admitted he worked at Circuit City, but denied submitting requests for FMLA sick leave on the same day(s) he worked at Circuit City.
The Union argues that Management failed to establish just cause for the removal of the Grievant. The Union contended that the crux of the matter is the interpretation of ELM, Section 535.312, which states that “An employee who is in a sick leave status may not engage in any gainful employment unless prior approval has been granted by appropriate authority.” Management’s interpretation of this ELM cite is that an employee who calls in, requesting sick leave, is in that status for a twenty four (24) hour period and cannot engage in any outside employment during that time frame. However, Management’s witnesses could not establish when this twenty four (24) hour period began and ended. The Union contends that nowhere in ELM 535.312 does it state that the covered period is only for twenty four (24) hours.
The Union also disputed Management’s interpretations of this ELM cite. The Union contended that the proper interpretation of the ELM 535 is the employee cannot engage in outside employment while on sick leave, during those hours the employee is scheduled to work his postal position. The Union states that the Grievant worked at Circuit City, during the time frame in question, as a bench technician. His hours of work at Circuit City were from 9 a.m. to 2 p.m. and for the Postal Service from 3 p.m. to 11:130 p.m. The Union argued that the Grievant did not violate the cited ELM provision, since he did not work at Circuit City, during the hours when he was supposed to be working at the Post Office. The hours of the two jobs never overlapped. Management never established that the Grievant was aware of this particular rule in the ELM 535. The Union contends that the removal was punitive in nature and argues that the Grievant had no prior discipline of this nature. They contend that Management violated the progressive concept of discipline outlined in Article 16.1 of the CBA.
As noted above the arbitrator sustained the Union’s grievance, in so doing he stated:
“The Employer’s case is very problematic, since it has not been shown by Management that the Grievant’s actions in requesting his FMLA sick leave was to collect an undeserved compensation, and not based on an existing serious health condition. If his motivation was to seek a financial wind fall as alleged by Management, clearly there would have been more than the three (3) dates in question where Mr. [Grievant] called in for FMLA sick leave. The record reflects that the Grievant worked approximately eighty five (85) days at Circuit City, between the dates of September 18, 2008, and February 25, 2009, yet there are only three (3) dates in question that the Grievant called into the Post Office requesting FMLA sick leave. . . This is not the typical case where an employee calls in requesting sick leave, goes on vacation or works a second job, and upon returning to work, completes and signs a PS – Form 3971 alleging sickness. Under such a scenario, a clear falsification by the employee of Form 3971 can be shown for financial gain. The employee would be clearly hiding the fact of having taken a vacation or having worked, and could be disciplined for not being honest about an illness. . . The Grievant on the other hand, never hid the fact from Management that he was working a second job. Supervisor  testified that sometime in late 2008, Grievant had been found asleep on the job and when she investigated the incident, Grievant informed her that he had a second job and was extremely tired. There was also evidence, subsequent to this event, that on Sunday’s the Grievant would come in dressed as if he were going to, or coming from church. When Supervisor  questioned the Grievant about his attire, he again informed her that he was now working a different second job. The Grievant never tried to hide the fact that he had outside employment while also working for the Postal Service. Management knew as early as September 2008 of the Grievant’s outside employment, yet never bothered to caution or warn him regarding ELM, Section 513.312, which it is alleged he violated. It was as though Management, knowing the Grievant had a second job, was trying to set him up for termination. It appears from the record that when the Grievant informed Supervisor  of his outside employment, she then informed her Manager. . . Management had at least two opportunities to forewarn the Grievant of its concerns, relevant to his outside employment and ELM, Section 513.312 requirements, but failed to do so. As such, Grievant’s outside employment was not unknown to Management and his employment is hereby imputed via constructive notice, and is not a legitimate basis for his removal from Postal employment. Moreover, the Grievant’s work hours at Circuit City were from 9 a.m. to 2 p.m. His scheduled tour of duty with the Postal Service was from 3 p.m. to 11:30 p.m. Evidence failed to establish that the Grievant was working his second job at Circuit City, when he was also scheduled for duty at the Post Office.