Postal Worker Fired For Improper Use Of FMLA Gets Job Back

November 12, 2010 by
Filed under: APWU 

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.

Comments

10 Comments on Postal Worker Fired For Improper Use Of FMLA Gets Job Back

  1. Don on Fri, 12th Nov 2010 12:38 pm
  2. The good news is he won his case. The bad news is he has to go back to wrok at the PO.

  3. Baltimore retired one on Fri, 12th Nov 2010 1:15 pm
  4. There goes the APWU backing slugs and malcontents. Don’t come to work, the Union will assure the arbitrator of your good work ethics and care for your job. What a joke American Postal Workers Union. It should be Americas Poorest Workers Union

  5. King on Fri, 12th Nov 2010 2:34 pm
  6. Baltimore retired, you are so out of it. you must be retired management who couldn’t do your job as a manager when taking corrective action and probably failed every corrective action you took and now you’re taking your aggression for the union’s sucess. Take a hike or go jump in the lake.

  7. Retired1 on Sat, 13th Nov 2010 6:08 am
  8. Lets get rid of the INCOMPETENT UNION SLUGS!!

  9. How many? on Sat, 13th Nov 2010 6:38 pm
  10. How many employees work for the airlines as a second job? just to get FREE AIRLINE TICKETS FOR THEMSELF and their FAMILYS??? INCLUDING MANAGEMENT!! MORE THEN YOU THINK….

  11. Indysteward on Sun, 14th Nov 2010 6:48 am
  12. Exact same circumstances with FML useage in Indy. Lu can you contact me?

  13. pigdaddy on Sun, 14th Nov 2010 11:49 am
  14. Msg cannot even fire a worker properly even if the worker is a slug. If it weren’t so comical it would be insane.

  15. Richard on Tue, 16th Nov 2010 4:39 am
  16. This arbitor was right on the money. What would you say to an employee who BT is 0500 yet takes SL for a doctor’s appointment? I would not want to get up at 4, work till 8:30, go sit in a doc’s waiting room, then possible tests. However, the slip does say that your “incapacitated”. Dam it you do, Dam if you don’t. Have a good today.

  17. In the Know on Wed, 17th Nov 2010 9:43 am
  18. TO ALL:

    We must STOP being so critical of our Union members when they have been restored. No matter what the circumstances are, as Unionist we take the rules, laws and handbooks and manuels to fight against Management. If manageament did not cross ever T and dot ever I, that is their FAILURE and our GAIN. We are lawyers without a JD after our name. Our Locals pay for us to receive extensive training in certain areas and many of us use our own time to educate ourselves on policy, laws and handbooks and manuels, WITHOUT PAY!!! What if that was YOU!!! You would expext your union rep to fight hard for you. Please understand this is NOT an easy job, which most of you will never undertake. Union reps receive very few accolades so lightn up on us when we win cases other feel should have been lost.

  19. Close to the facts on Thu, 18th Nov 2010 10:20 pm
  20. This case was initiated by a USPS Mgr just prior to his retirement who had a long history of harassment towards union members that demanded their rights. This was his last hurrah that he would’nt have to answer for as he knew someone else would have to clean up his mess. As a result he personally was responsible for costing the USPS in awards paid out time and time again without EVER having to answer for his reckless behavior. I wish I had a total dollar amount to quote, but lets just say it was probably in the six figure range +. Trust me this was strickly punitive. In addition this employee paid an enormous personal price if you can imagine having your income suddenly removed without warning for over a year. What bad events would you be subject to under those circumstances, they all happened to this guy? Justice was served here but the man responsible for creating this mess got away scott free. So Sad…dont judge just because this guy works for the USPS, it just proves that with management like this rank and file would be abused and mistreated without recourse over and over again. This is exactly why the union must exist.