National Association of Independent Labor, Local 7 (Union) and United States Department of the Air Force, Seymour Johnson Air Force Base, North Carolina (Agency), 0-NG-3180
| Decision Date | 18 September 2014 |
| Docket Number | 0-NG-3180 |
| Citation | 67 FLRA No. 148 |
| Court | Federal Labor Relations Authority Decisions |
| Parties | NATIONAL ASSOCIATION OF INDEPENDENT LABOR LOCAL 7 (Union) and UNITED STATES DEPARTMENT OF THE AIR FORCE SEYMOUR JOHNSON AIR FORCE BASE, NORTH CAROLINA (Agency) |
Before the Authority: Carol Waller Pope, Chairman, and Ernest DuBester and Patrick Pizzella, Members (Member Pizzella concurring, in part, and dissenting, in part)
The Union filed a negotiability appeal under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), [1] concerning two provisions (Provision 1 and Provision 3). There are two substantive questions before us.
The first question is whether the Agency has established that Provision 1 – which pertains to employee requests for sick leave – conflicts with 5 C.F.R. § 630.405(a) or is otherwise contrary to government-wide regulation or law. Because § 630.405(a) affords the Agency discretion to comply with Provision 1, we find that the provision does not conflict with § 630.405(a). And because the Agency has not demonstrated that Provision 1 is otherwise contrary to government-wide regulation or law, we order the Agency to rescind its disapproval of that provision.
The second question is whether the Agency has established that Provision 3 – which entitles an employee who is subject to an adverse action to advance notice and a right to reply – is contrary to 5 C.F.R. § 752.404(d)(2) or 31 U.S.C. § 1341 (the Anti-Deficiency Act). Section 752.404(d)(2) provides an exception to notice-and-reply requirements in the event of an emergency furlough;[2] the Anti-Deficiency Act precludes an agency from expending funds: (1) in excess of those appropriated for the fiscal year in which the expenditure is made; and (2) prior to their appropriation.[3] We find that in the event of an emergency furlough, Provision 3 would require the Agency to provide notice-and-reply entitlements that are inconsistent with § 752.404(d)(2), and to keep affected employees in a paid, duty status longer than the Anti-Deficiency Act would permit. Accordingly, we find that Provision 3 is contrary to § 752.404(d)(2) and the Anti-Deficiency Act.
The parties executed an agreement, and the Agency head subsequently disapproved the agreement under § 7114(c) of the Statute.[4] The Union filed a negotiability appeal (the petition); the Authority conducted a post-petition conference (the conference); the Agency filed a statement of position (the Agency’s statement); and the Union filed a response (the Union’s response).
Under § 2424.23 of the Authority’s Regulations, the Authority prepared and served a record of the conference (the record) on the parties.[5] In the Agency’s statement, the Agency objects that the record omits a legal argument that the Agency made at the conference concerning Provision 3’s alleged inconsistency with § 752.404(d)(2).[6] However, because an agency is not bound by the legal arguments that it raises at a post-petition conference, the Authority does not include those arguments in its written record of the conference.[7] Instead, an agency must supply all of its arguments in its statement of position.[8] Because the Authority does not include legal arguments like the one identified by the Agency in records of post-petition conferences, we reject the Agency’s objection to the record.
Sick leave of more than three consecutive workdays should be supported by a medical certificate. When for justifiable reasons a medical certificate is unnecessary, the Employer may accept an employee’s certificate showing incapacitation waiving medical documentation. The certificate, when required, must cover all absence beyond the third workday and show that the employee was incapacitated for duty for the entire period covered by the certificate. In cases of extended illness, medical certificates may be required periodically if necessary to establish the employee’s continued incapacity to return to duty.[9]
If the parties do not dispute the meaning of a provision, and that meaning is consistent with the provision’s wording, then the Authority bases its negotiability determination on the undisputed meaning.[10] In addition, where a proposal or provision is ambiguous or silent as to a particular matter, but the parties agree on that aspect of the proposal or provision’s meaning, the Authority will adopt the agreed-upon meaning so long as it is consistent with the proposal or provision’s wording.[11]
Here, the parties disagree – in part – over the meaning of the first two sentences of Provision 1. As the parties do not reference the remaining sentences of the provision, neither do we.
Where parties disagree over the meaning of a proposal or provision, the Authority looks to its plain wording and any union statement of intent.[12] If the union’s explanation is consistent with the provision’s plain wording, then the Authority adopts that explanation for the purpose of assessing the provision’s legality.[13] For example, where a union explained that a provision stating that an agency “may” issue a written warning would permit – but not require – the agency to issue a written warning in certain circumstances, the Authority adopted the union’s explanation as consistent with the provision’s wording.[14] We note that the meaning that the Authority adopts in resolving a negotiability dispute applies in other proceedings – including arbitration – unless modified by the parties through subsequent agreement.[15]
The first sentence of Provision 1 states that “[s]ick leave of more than three consecutive workdays should be supported by a medical certificate.”[16] The parties disagree over the extent to which the provision’s first sentence limits the Agency’s ability to require medical certification to support sick-leave requests of three or fewer workdays. Specifically, the Agency claims that this sentence would prohibit the Agency from requiring medical certification to support any request for three or fewer days of sick leave.[17] The Union, on the other hand, asserts that Provision 1 should be read in the context of the sick-leave-abuse provision of the parties’ agreement, [18] under which the Agency may place any employee it suspects of sick-leave abuse on sick-leave restriction and require that employee to provide medical certification to support sick-leave requests of any duration.[19] Thus, the Union asserts that, under the first sentence of Provision 1, “an employee on sick leave for three days or less will not be required to provide [medical] documentation, unless the employee” is on sick-leave restriction.[20]
Provision 1 is silent as to sick-leave requests for three or fewer days. As both parties interpret the first sentence of Provision 1 as precluding the Agency from requiring an employee who is not on sick-leave restriction to provide medical certification for requests of three or fewer days of sick leave, [21] we adopt that meaning for determining the negotiability of Provision 1.[22] However, to the extent that the Agency argues that Provision 1 would prevent the Agency from requiring an employee who is on sick-leave restriction to provide medical certification to support requests for three or fewer days of sick leave, [23] that argument is inconsistent with the Union’s explanation of the meaning and operation of the provision.[24] In particular, the Union clarified at the conference that “the Agency may request that any employee suspected of abusing sick leave . . . submit medical certification” to support a sick-leave request of any duration.[25] Because the Union’s explanation of the provision’s meaning is consistent with the provision’s plain wording, we adopt that meaning.[26] Thus, we interpret Provision 1 as permitting the Agency to require medical certification to support any sick-leave request (of any duration) from an employee on sick-leave restriction. That is, the first sentence would preclude the Agency from requiring medical certification to support requests for three or fewer days of sick leave only from employees who are not on sick-leave restriction.
The parties also dispute the meaning of the second sentence of Provision 1, which pertains to requests for more than three days of sick leave, and which provides that the Agency “may accept” an employee’s self-certification in lieu of medical certification “[w]hen[, ] for justifiable reasons[, ] a medical certificate is unnecessary.”[27] Specifically, although the parties agree that this sentence would permit the Agency to accept an employee’s self-certification to support a sick-leave request of more than three days, [28] the Agency also asserts that this sentence would require the Agency to accept a self-certification whenever an employee asserts a “justifiable reason.”[29]
The Union clarified at the conference that, under the second sentence of Provision 1, the Agency would retain “the discretion to determine whether to accept or reject” an employee’s self-certification for a sick-leave request for more than three days.[30] Thus, in the event that the Agency rejected the employee’s self-certification, the Agency would retain the ability to require medical certification to support a sick-leave request for more than three days. As the Union’s explanation is consistent with the plain wording of the provision – specifically, that the Agency “may accept” an employee’s self-certification[31] – we interpret Provision 1 as permitting the Agency to accept or reject an employee’s self-certification to support a sick-leave request for more than three days.[32]
In sum under the first sentence of Provision...
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