National Treasury Employees Union (Union) and United States Department of the Treasury, Internal Revenue Service, Office of Chief Counsel, Washington, D.C. (Agency)
| Decision Date | 25 September 2014 |
| Docket Number | 0-NG-3130 |
| Citation | 67 FLRA No. 154 |
| Court | Federal Labor Relations Authority Decisions |
| Parties | NATIONAL TREASURY EMPLOYEES UNION (Union) and UNITED STATES DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE OFFICE OF CHIEF COUNSEL WASHINGTON, D.C. (Agency) |
66 FLRA 809 (2012), 66 FLRA 1030 (2012)
Before the Authority: Carol Waller Pope, Chairman, and Ernest DuBester and Patrick Pizzella, Members (Member Pizzella dissenting)
In NTEU, [1] the Authority found that a provision requiring the Agency to counsel an employee before placing that employee on sick-leave restriction (the provision) was not contrary to law because the provision did not “abrogate”[2] management’s right to discipline employees under § 7106(a)(2)(A) of the Federal Service Labor-Management Relations Statute (the Statute).[3] The Agency petitioned the U.S. Court of Appeals for the District of Columbia Circuit (the court) for review, and in U.S. Department of the Treasury, IRS Office of the Chief Counsel, Washington, D.C. v. FLRA (IRS), [4] the court vacated the Authority’s decision and remanded the case to the Authority.
Applying the court’s opinion in IRS as the law of the case, the question before us on remand is whether, under the “excessive[-]interference test, ”[5] the provision is an “appropriate arrangement” within the meaning of § 7106(b)(3) of the Statute.[6] Because the provision preserves the Agency’s right to respond to a first instance of suspected leave abuse with any and every form of discipline other than placing the employee on sick-leave restriction, we find that the provision does not excessively interfere with management’s right to discipline its employees under § 7106(a)(2)(A) of the Statute. Accordingly, we conclude that the provision is an appropriate arrangement under § 7106(b)(3) of the Statute, and we order the Agency to rescind its disapproval of the provision.
The background is set forth fully in NTEU and is only briefly summarized here. The parties executed an agreement, and the Agency head subsequently disapproved the agreement under § 7114(c) of the Statute.[7] The Union filed a negotiability appeal (the petition); the Agency filed a statement of position (the Agency’s statement); the Union filed a response (the Union’s response); and the Agency filed a reply (the Agency’s reply).
As relevant here, the Authority, in NTEU, addressed whether the provision is contrary to § 7106(a)(2)(A) of the Statute.[8] In so doing, the Authority applied its previous holding that, in cases involving agency-head review of agreed-upon provisions, it would find that “a contractual arrangement is an ‘appropriate’ arrangement within the meaning of § 7106(b)(3) of the Statute – and that an agency head may not disapprove such an arrangement on § 7106 grounds – unless the arrangement abrogates, or waives, a management right.”[9] Therefore, the Authority declined to apply the “excessive[-]interference standard”[10] that the Authority applies in negotiability cases involving contract proposals to which the parties have not yet agreed.[11]
Applying the “abrogation standard, ”[12] the Authority found that the provision does not abrogate management’s right to discipline employees.[13] Therefore, the Authority found that the provision is an appropriate arrangement and – consequently – is not contrary to law.[14] The Authority ordered the Agency to rescind its disapproval of the provision.[15]
The Agency filed a petition for review of the Authority’s decision with the court. On review, the court held that the Authority erred by applying two different “appropriate[-]arrangement” standards in different contexts – specifically, the “abrogation” standard in cases involving agreed-upon provisions, and the “excessive[-]interference” standard in cases involving bargaining proposals.[16] However, the court declined the Agency’s request to determine whether the provision is an appropriate arrangement under the “excessive[-]interference” test. [17] Instead, the court stated that, “consistent with [its] usual practice, ” it would permit the Authority to make that determination upon remand.[18] We do so here.
When the Office has reasonable grounds to question whether an employee is properly using sick leave including annual leave in lieu of sick leave (for example, when sick leave is used frequently or in unusual patterns or circumstances), the Office may inquire further into the matter and ask the employee to explain.Absent a reasonably acceptable explanation, the Office will counsel the employee that continued frequent use of sick leave, or use in unusual patterns or circumstances, may result in a written requirement to furnish administratively acceptable evidence for each subsequent absence due to illness or incapacitation regardless of duration.[19]
As discussed in NTEU, [20] the provision concerns sick-leave usage and applies when the Agency has reasonable grounds to question whether an employee is properly using sick leave.[21] In these circumstances, the Agency may inquire into the matter and ask the employee to explain.[22] If the Agency decides that the employee has not provided a reasonable explanation, then the Agency will counsel the employee.[23] This counseling would inform the employee that, if the employee continues to abuse sick leave, then the Agency could require the employee to furnish administratively acceptable evidence for each subsequent absence due to illness or incapacitation regardless of duration.[24]
Before the Authority in NTEU, the Agency argued that the provision precludes management from disciplining any first instance of sick-leave abuse.[25] But the Union argued that the provision precludes management only from placing an employee on sick-leave restriction without first counseling the employee.[26] In this regard, the Union asserted that, under the provision, the Agency could still respond to a first offense of sick-leave abuse by denying the leave request, declaring the employee absent without leave, or imposing any form of discipline other than sick-leave restriction.[27] Additionally, the Union stated that “nothing in [the provision] would limit [the Agency] from disciplining an employee while contemporaneously providing counseling.”[28] The Authority adopted the Union’s explanation that the provision permits management to respond to a first offense of sick-leave abuse with any form of discipline other than the issuance of a written restriction of sick leave.[29]
The court’s decision in IRS did not disturb the Authority’s findings that: (1) the provision permits management to respond to a first offense of sick-leave abuse with any form of discipline other than the issuance of a sick-leave restriction;[30] (2) the provision affects management’s right to discipline employees under § 7106(a)(2)(A) of the Statute;[31] and (3) the provision is an arrangement.[32] Accordingly, the sole issue before us is whether the arrangement is “appropriate” within the meaning of § 7106(b)(3) of the Statute.[33]
We adopt the court’s opinion in IRS as the law of the case.[34] Accordingly, we apply the “excessive[-]interference” test.[35] Under that test, the Authority assesses whether an arrangement is appropriate, or whether it is inappropriate because it excessively interferes with the affected management right.[36]
In order to determine whether an arrangement excessively interferes with the affected management right, the Authority weighs the benefits that the arrangement provides to employees against the burdens that the arrangement imposes on the exercise of management’s rights.[37] Here, the provision would benefit employees adversely affected by the exercise of a management right because management would be required to warn an employee suspected of leave abuse that a failure to correct his or her behavior could result in leave restriction before actually placing the employee on sick-leave restriction. Thus, the provision would protect employees suspected of abusing sick leave from being required to support future leave requests with documentation without first receiving counseling and the opportunity to correct problematic leave usage.
Regarding the provision’s intrusion on management’s right to discipline, the Agency argues that the provision “dictates a course of action, substitutes non-disciplinary action for a disciplinary action[, ] and precludes management from taking disciplinary action for the conduct that gave rise to the inquiry in the first place.”[38] However, the Agency overstates the provision’s burden on the exercise of management rights. In this regard, the provision would entitle an employee to only a single counseling session before the Agency may impose leave restriction. And nothing in the provision prevents the Agency from providing this counseling session while simultaneously pursuing another form of discipline. This is because, as stated previously, under the provision, the Agency could respond to a first offense of leave abuse with any form of discipline other thanthe issuance of a leave-restriction notice. Thus, the Agency’s argument is based on a misinterpretation of the meaning of the provision, and does not provide a basis for finding the provision contrary to law.[39] As noted above, the court in IRS did not disturb the Authority’s interpretation of the meaning of the provision.
In addition, the Agency cites NFFE, Local 858 (Local 858)[40] and AFGE, Local 1156 (Local 1156)[41] in support of its argument that the provision is contrary to law.[42] In Local 1156, the provision at issue would require the Agency to counsel an employee about suspected sick-leave...
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