42:1157(79)NG - - AFGE Local 1156 and Navy Ships Parts Control Center, Mechanicsburg, PA - - 1991 FLRAdec NG - - v42 p1157
[ v42 p1157 ]
The decision of the Authority follows:
42 FLRA No. 79
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of one provision in a collective bargaining agreement negotiated by the parties and disapproved in the course of Agency head review under section 7114(c) of the Statute. The provision requires the Agency to caution employees suspected of abusing sick leave prior to requiring the submission of medical certificates. The Agency filed a statement of position. The Union did not file a response to the Agency's statement of position. For the following reasons, we find that the provision is nonnegotiable.
Article 41, Section 2:
Where there is reason to believe the employee is abusing sick leave, the Employer shall caution the employee, in writing, that he/she has a questionable sick leave record and why the employee is suspected of abusing or using excessive sick leave and the improvement level desired. He/she shall also be advised that if his record does not improve, a medical certificate will be required for each future absence due to illness until the employee's leave record improves to the specified level or the employee shows that the leave is not excessive sick leave. If this does not improve his leave record, the employee shall be notified in writing, that all future requests for leave for medical purposes must be supported by a medical certificate.
III. Positions of the Parties
The Agency contends that the provision is nonnegotiable because it directly interferes with its right to discipline employees under section 7106(a)(2)(A) of the Statute. The Agency asserts that provisions which limit the right of an agency to determine and impose appropriate disciplinary penalties are nonnegotiable. The Agency claims that the provision requires management to "give the employee an improvement period and if no improvement is shown, requires the employer to give the employee a written notice that all future requests for sick leave must be supported by a medical certificate." Statement at 2. Further, the Agency claims that the provision "would prevent the employer from placing an employee on leave restriction for leave abuse until after it has cautioned the employee in writing." Petition, Enclosure 1.
The Agency relies on Service and Hospital Employees International Union, Local 150 and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA 521, 525-26 (1990) (VAMC, Milwaukee) to support its contention that the provision directly interferes with its right to discipline. In VAMC, Milwaukee, the Authority found that a provision that required the agency to give oral and written counseling to an employee prior to placing the employee on sick leave restriction directly interfered with the agency's right to discipline. The Agency argues that "[a]lthough the language [in the provision] may differ from that in [VAMC, Milwaukee], the only actual difference is that the instant provision requires the employee be counseled only once." Statement at 2.
The Agency asserts that the provision in this case "is much more restrictive" than the provision in VAMC, Milwaukee because it "does not just impose conditions on the employer's decision to place an employee on a letter requirement, it also conditions the employer's right to require the employee to furnish a medical certificate in support of any absence that is to be charged as sick leave."(1) Id. The Agency disputes the Union's contention that Article 41, section 10 of the parties' collective bargaining agreement preserves the Agency's right to request a medical certificate from an employee to support a request for sick leave.(2) The Agency argues that the Union's contention is contrary to the "plain wording" of Article 41, section 10. Id. at 3. Further, the Agency asserts that the provision establishes a progressive discipline scheme for employees suspected of sick leave abuse. The Agency notes that the Authority has held that proposals requiring progressive discipline "impermissibly limit management's discretion to determine appropriate discipline." Id.
Finally, the Agency contends that the provision is not an appropriate arrangement for employees adversely affected by the exercise of a management right. The Agency claims that the provision limits its ability "to require employees to provide evidence that their use of sick leave is consistent with law and regulations where management has a reasonable basis to believe that prior sick leave use is inappropriate." Id. at 4. The Agency states that "[w]hile there may be some benefit to employees from relieving them of the requirement to provide medical evidence prior to counseling by the [A]gency, the provision would have a substantial impact on the right of the [A]gency to require such documentation." Id. Further, the Agency asserts that, on balance, without the provision, "[e]mployees would be free to grieve unwarranted imposition of letters of requirement" and such grievances would be subject to arbitration. Id.
The Union contends that the provision is negotiable because it does not interfere with a management right. However, the Union asserts that if the provision does interfere with a management right, it should be found to be an appropriate arrangement for employees adversely affected by the exercise of a management right.
The Union asserts that the provision is distinguishable from the provision found nonnegotiable by the Authority in VAMC, Milwaukee. The Union contends that the "issuance of [a] Letter of Requirement for an employee to support sick leave absences with medical certificates is not a disciplinary action . . . ." Petition at 2. In support of this contention, the Union cites Article 34, section 1.d of the parties' agreement. The Union argues that, as the issuance of a letter requirement is not a disciplinary action, it does not interfere with management's right to discipline employees.
The Union also contends that the requirement of the provision that the Agency "caution an employee before requiring a medical certificate is based upon a mere suspicion of sick leave abuse and not proof of such abuse." Id. Relying on Article 41, section 10 of the parties' agreement, the Union argues that the burden of proof is on the Agency to sustain a charge of sick leave abuse. The Union argues that Article 41, section 10 preserves the Agency's right to request a medical certificate when the Agency has evidence or a reasonable cause to believe an employee "did not meet the legal criteria for sick leave use." Id.
IV. Analysis and Conclusions
A. The Provision Directly Interferes with the Agency's Right to Discipline Employees under Section 7106(a)(2)(A) of the Statute
The provision would require the Agency to take several actions prior to requiring an employee suspected of abusing or using excessive sick leave to provide a supporting medical certificate for a sick leave request or placing the employee on sick leave restriction. The first sentence of the provision would require the Agency to give an employee "suspected of abusing or using excessive sick leave" a written warning providing the employee with the following information: (1) the fact that the Agency believes the employee has a "questionable" sick leave record; (2) the Agency's reasons for suspecting sick leave misuse or abuse; and (3) the level of improvement that the Agency determines is necessary to remove its suspicion. The second sentence of the provision would require the Agency to inform an employee that the failure to improve his or her sick leave record will result in a requirement that all future requests for sick leave be supported by medical certification. The final sentence of the provision requires the Agency to give the employee written notice that he or she is required to support all future sick leave requests with medical certification.
In sum, in situations where the Agency has reason to believe that an employee is misusing or abusing sick leave, the provision requires the Agency to first provide the employee with written notice that a medical certificate may be required for each subsequent absence due to sick leave and, second, to provide the employee with an opportunity to improve. If no improvement is noted, the provision requires the Agency to give the employee written notice that all future requests for sick leave must be supported by a medical certificate. The effect of the provision is to require the Agency to provide written notice to an employee suspected of sick leave abuse before the Agency may put the employee on sick leave restriction and require the employee to provide supporting medical certificates for all sick leave requests.
Because the use of leave restrictions is, in practical terms, a precondition of an agency's decision to discipline employees for suspected misuse or abuse of sick leave, provisions or proposals that preclude an agency from imposing sick leave restriction directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. See National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Information Systems Command, St. Louis, Missouri, 42 FLRA No. 78 (1991), slip op. at 21-22 (Army Information Systems Command) (proposal which would prohibit management from using approved leave to place an employee in a restricted leave use category directly interferes with management's right to discipline).
Under the provision in this case, management could not require a medical certificate for suspected misuse or abuse of sick leave unless an employee had been given written notice and an opportunity to comply with the Agency's stated level of improvement, regardless of the circumstances prompting the notice. In other words, for the incidents giving rise to a suspicion of sick leave abuse, the provision prevents the Agency from taking any action other than written warnings and substitutes these warnings for whatever form of sick leave restriction the Agency may want to impose. Under the provision, management would not be able to place an employee in a restricted leave category based on the incidents of suspected sick leave misuse or abuse. Because sick leave restriction is, as a practical matter, a precondition of management's decision to impose discipline on an employee for misuse or abuse of sick leave, the provision would effectively preclude management from responding to the employee's improper use of sick leave through discipline. See Army Information Systems Command, 42 FLRA No. 78 (1991), slip op. at 21-22 (Because "the [a]gency would not be able to place an employee in a restricted leave use category based on previously approved leave[,] . . . management would be precluded from responding to an employee's inappropriate use of leave through discipline."). We conclude, therefore, consistent with Army Information Systems Command, that the provision directly interferes with management's right to discipline under section 7106(a)(2)(A).
In finding that the provision directly interferes with management's right to discipline, we note the Union's contention that the provision does not interfere with this management right because the issuance of the "Letter of Requirement" required by the provision does not constitute disciplinary action under the parties' agreement. Petition at 2. We reject this contention. Regardless of whether the parties' agreement provides that a letter of requirement is not a disciplinary action, the provision's requirement that the Agency issue written notice prior to placing employees on sick leave restriction places a substantive precondition on the Agency's ability to impose sick leave restriction and, therefore, directly interferes with management's right to discipline.
B. The Provision Is Not an Appropriate Arrangement under Section 7106(b)(3) of the Statute
Having determined that the provision directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute, we next address the Union's contention that the provision is nevertheless negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. To determine whether a provision constitutes an appropriate arrangement, we must decide whether a provision is intended to be an arrangement for employees adversely affected by the exercise of a management right, and whether the provision is appropriate or inappropriate because it excessively interferes with the exercise of a management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (Kansas Army National Guard).
We find that the provision constitutes an arrangement for employees adversely affected by management's right to discipline employees because it would protect employees who management believes are misusing or abusing sick leave from being required to support their sick leave requests with medical certificates or being placed on sick leave restriction without first receiving written caution and an opportunity to remove management's suspicion that sick leave is being misused or abused.
Having concluded that the provision in dispute constitutes an arrangement, we now consider whether it is an appropriate arrangemen