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36 FLRA No. 76

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1380

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NAVAL COASTAL SYSTEMS CENTER

PANAMA CITY, FLORIDA

(Agency)

0-NG-1601

DECISION AND ORDER ON NEGOTIABILITY ISSUES

August 21, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of three provisions of a negotiated agreement that were disapproved by the Department of the Navy (the Agency) under section 7114(c) of the Statute.

Provision 1 relates to claims against the Union for erroneously withheld dues. We find that it is nonnegotiable because it is inconsistent with law and Government-wide regulation. Provision 2 concerns a 10-day period during which employees may respond to proposed adverse actions. We find that it constitutes a negotiable procedure under section 7106(b)(2) of the Statute. Provision 3 would limit the information that an employee can be required to provide management in order to explain a request for sick leave. We find it to be nonnegotiable because it violates management's rights, under section 7106(a)(2)(A) and (B) of the Statute, to discipline employees and to assign work.

II. Provision 1

Section 9.10 The Union will not be held responsible for any EMPLOYER made errors with respect to the dues withholding program.

A. Positions of the Parties

1. Agency

The Agency contends that Provision 1 is contrary to law and Government-wide regulation. According to the Agency, the broad wording of the provision requires a waiver of all claims against the Union for erroneous payment of dues, including claims based on fraud and misrepresentation. The Agency asserts that under 5 U.S.C. § 5584 and 4 C.F.R. Part 91, a "waiver may be granted if (1) collection action would be against equity and good conscience and not in the best interests of the United States, and (2) there is no indication of fraud, misrepresentation, fault or lack of good faith on the part of the employee or any other person having an interest in obtaining a waiver." Agency's Statement of Position at 2 (emphasis in original). The Agency also asserts that only the Comptroller General can waive claims for erroneous payment exceeding $500 and that 4 C.F.R. § 91.5 requires that an individual, case-by-case assessment be made of the factors that would support the granting or denial of a request for waiver.

The Agency argues that because applicable law and regulation prohibit a waiver of claims based on fraud and misrepresentation, Provision 1 is inconsistent with law and Government-wide regulation and is nonnegotiable under section 7117(a)(1) of the Statute. The Agency relies on National Federation of Federal Employees, Local 284 and Department of the Navy, Naval Air Technical Training Center, Lakehurst, New Jersey, 29 FLRA 958 (1987) (Provision 2) (Naval Air Technical Training Center), where the Authority addressed a provision that required the agency to waive all claims against the union for dues erroneously withheld by the agency. The Authority concluded that the provision required the agency to waive claims for dues erroneously remitted to the union in circumstances where waiver was precluded by 5 U.S.C. § 5584 and 4 C.F.R. Part 91 and that the provision was, therefore, nonnegotiable under section 7117(a)(1) of the Statute.

The Agency contends that the Authority's decision in Lowry Air Force Base, Denver, Colorado, 31 FLRA 793 (1988) (Lowry Air Force Base) is not dispositive of this case because in that decision the Authority "expressed no view on what other actions an agency may take to recover amounts claimed to have been improperly remitted as dues to an exclusive representative." Agency's Statement of Position at 2.

2. Union

The Union states that Provision 1 is intended "to prevent the [A]gency from recouping dues money from the Union if the Agency erroneously withholds dues from an employee[.]" Union's Petition for Review at 1. The Union also states that Provision 1 applies only to errors in dues withholding that are made by the Agency. According to the Union, the provision would not preclude Agency actions to recover dues remitted to the Union where the dues were obtained by fraud or misrepresentation or some other Union action which would be contrary to law and regulation. Union's Response to the Agency's Statement of Position (Union's Response) at 3, 4. The Union concludes, therefore, that the provision is not inconsistent with law and regulation.

The Union contends that the Authority's decision in Naval Air Technical Training Center does not apply to this case because it was overruled by the Authority in Lowry Air Force Base. The Union argues that because, under Lowry Air Force Base, an agency is legally precluded from recouping erroneously withheld dues, it is no longer necessary for a union "to apply to regain the amount recouped" through the claims waiver provisions established by 5 U.S.C. § 5584 or 4 C.F.R. Part 91. Union's Response at 3. Consequently, the Union asserts that Provision 1 does not conflict with either 5 U.S.C. § 5584 or 4 C.F.R. Part 91. Id.

The Union argues that an employee can remain a member of the Union despite being transferred out of the unit and that, even if the dues allotment of that employee must be terminated under section 7115 because he or she is no longer covered by the collective bargaining agreement, the employee would still owe dues to the Union as a Union member. The Union concludes that because in such a situation the Agency need not reimburse the employee for erroneously withheld dues, the Agency need not recover the dues from the Union and the issue is "moot." Id. at 4-5.

The Union also asserts that the Agency has no interest in the recoupment of money the Agency collects and erroneously remits to the Union. The Union argues that "dues allotments are never the employer's property since it [sic] goes from the employee directly to the union[.]" Union's Response at 5. According to the Union, therefore, any dispute concerning dues recoupment is only between the employee and the Union. Id.

Finally, the Union asserts that neither 5 U.S.C. § 5584 nor 4 C.F.R. Part 91 applies to the provision in this case. The Union argues that 5 U.S.C. § 5584 and 4 C.F.R. Part 91 apply to overpayments to an employee and that a union is not an "employee" within the meaning of those provisions. The Union also argues that the Authority is not bound by Comptroller General rulings to the contrary. Union's Response at 6.

B. Analysis and Conclusions

We conclude that Provision 1 is inconsistent with law and Government-wide regulation and that it is, therefore, nonnegotiable.

In Lowry Air Force Base, the Authority reexamined the issue of whether an agency violates section 7116(a)(1) and (8) of the Statute when it recoups dues erroneously remitted to a union by deductions from subsequent remittances to that union. Based on the reasoning and conclusions of the U.S. Courts of Appeals in American Federation of Government Employees, Council 214 v. FLRA, 835 F.2d 1458 (D.C. Cir. 1987); American Federation of Government Employees, Local 2612 v. FLRA, 739 F.2d 87 (2d Cir. 1984); and American Federation of Government Employees, Local 1816 v. FLRA, 715 F.2d 224 (5th Cir. 1983), the Authority held that an agency violates the Statute if it reduces a remittance of dues to a union in order to recoup a prior erroneous overpayment. The Authority stated:

[W]e will interpret section 7115 of the Statute to impose an absolute duty on agencies to honor the current assignments of unit employees by remitting regular and periodic dues deducted from their accrued salaries to their exclusive representatives. Therefore, under section 7115, an agency is authorized only to allot dues, not to set off.

Lowry Air Force Base, 31 FLRA at 797.

Because section 7115 imposes an absolute duty to remit to a union dues deducted from unit employees pursuant to a valid dues assignment, an agency cannot reduce the current allotment of dues to a union in order to recover amounts that were previously remitted to the union by mistake. See AFGE, Council 214, 835 F.2d at 1462. Under section 7115, current dues allotments must be honored by the agency.

Provision 1 applies to situations in which the Agency has erroneously allotted dues to the Union. In such circumstances, the erroneous payment is in excess of the amount to which the Union is entitled under valid current dues assignments and gives rise to a claim on the part of the Agency for the amount of the excess. Under 5 U.S.C. § 5584 and 4 C.F.R. Part 91, an agency must seek to recover the amount of the overpayment or it must waive collection of the claim. See 61 Comp. Gen. 218, 220 (1982). Consequently, we disagree with the Union's contention that the overpayment of dues involves only a claim by the employee against the Union, rather than a claim by the Agency against the Union.

Moreover, even assuming that the Union is correct that the Agency's claim is moot as to a Union member who is no longer a member of the bargaining unit, that is only one circumstance in which erroneous overpayment may give rise to an Agency claim against the Union. The proposal, however, is not limited to that narrow situation. The issue, therefore, is whether the proposal would require the Agency to waive claims it has against the Union for erroneous overpayment of dues, the waiver of which would be contrary to law and regulation.

In holding that an agency is precluded by section 7115 from recoupment of prior erroneous dues allotments to a union by reducing a current dues allotment, the Authority did not hold that an agency has no claim to those prior erroneous allotments. The Authority held only that an agency could not reduce the amount of dues remitted to a union in order to collect on such a claim. The Authority's decision in Lowry Air Force Base, therefore, does not resolve the issue of whether, and under what circumstances, the agency can waive that claim. In other words, the Authority's decision in Lowry Air Force Base precluding dues recoupment by means of reducing a current dues allotment does not dispose of the issues concerning waiver of agency claims against the union addressed in the Authority's decision in Naval Air Technical Training Center.

We disagree with the Union's attempt to bring Provision 1 within the narrow holding of the Authority's decision in Lowry Air Force Base. The Union appears to interpret the proposal as meaning only that the Agency may not deduct dues erroneously paid to the Union from a current allotment of dues owed to the Union. Union's Response at 3, Petition for Review at 1. The literal wording of the provision, however, is not limited to that circumstance. As worded, the provision would preclude the Agency from pursuing claims against the Union for erroneous overpayment of dues through other available remedies. Compare AFGE, Council 214, 835 F.2d at 1462; Lowry Air Force Base, 31 FLRA at 797 (the court and the Authority indicated that they have no position as to other actions an agency may take to recover amounts claimed to have been improperly remitted previously as dues to a union).

If the Union had intended to preclude only recoupment by the Agency through deducting the amount claimed from a current dues remittance, it could have phrased the provision to reflect that narrow limitation. See Overseas Education Association, Inc. v. FLRA, 827 F.2d 814, 821 (D.C. Cir. 1987) ("It is for the Union, not the FLRA, to draft proposals that come fully within the Employer's duty to negotiate"). It did not do so. We reject the Union's narrow interpretation of the provision as inconsistent with the provision's broad wording and we will interpret the provision, consistent with its wording, as requiring the Agency to waive claims against the Union for overpayment resulting from error on the part of the Agency. Because we interpret the provision as applying to claims resulting from Agency-made errors, we accept the Union's explanation that the provision would not require the Agency to waive claims based upon fraud, misrepresentation, fault, or lack of good faith. The issue, therefore, is whether Provision 1, in providing that the Union will not be liable for erroneous overpayment of dues by the Agency, requires the Agency to waive claims against the Union in circumstances where a grant of a waiver would be contrary to law and regulation.

The Agency argues that the terms of the provision are so broadly worded as to require it to waive a claim even where the waiver of that claim would be contrary to law and regulation. We agree. The standards governing the waiver of claims for the erroneous payment of pay and allowances to or on behalf of an employee, other than travel, transportation, or relocation payments, are set forth in 5 U.S.C. § 5584 and 4 C.F.R. Part 91. Under those standards, waiver may be granted if: (1) collection action would be against equity and good conscience and not in the best interests of the United States; (2) there is no indication of fraud, misrepresentation, fault, or lack of good faith on the part of the employee or any other person having an interest in obtaining a waiver. Moreover, only the Comptroller General, not the head of an agency, can waive claims for an erroneous payment exceeding $500. 4 C.F.R. § 91.4. Determinations as to the waiver of claims must be made on a case-by-case basis. 4 C.F.R. § 91.5(c). See Naval Air Technical Training Center, 29 FLRA at 962.

Because we have interpreted Provision 1, based on the record, as not requiring the Agency to waive overpayments procured by fraud, misrepresentation, fault, or lack of good faith on the part of the employee or any other person, the only issue to be decided is whether the proposal would require the Agency to waive claims for overpayments due to error by the Agency that are in excess of $500. Provision 1 does not contain a limitation on the amount of the claim that the Agency would agree to waive. Consequently, the provision would require the Agency to waive claims for erroneous overpayment of amounts in excess of $500. As noted above, under 5 U.S.C. § 5584 and 4 C.F.R. § 91.4, waiver of claims for amounts over $500 can be granted only by the Comptroller General. By requiring the Agency to waive claims that can be waived only by the Comptroller General, Provision 1 is inconsistent with law and applicable regulation and outside the duty to bargain under section 7117(a)(1) of the Statute. See Naval Air Technical Training Center, 29 FLRA at 963. We note that a provision requiring the Agency to request a waiver from the Comptroller General, consistent with law and regulation, of claims over $500 would be negotiable.

We disagree with the Union's contention that the standards governing waivers of claims of erroneous overpayments set forth in 5 U.S.C. § 5584 and 4 C.F.R. Part 91 do not apply to labor organizations. In the first place, the waiver provisions of 4 C.F.R. Part 91 apply not only to erroneous overpayments made to an employee, but also to payments made on behalf of an employee. 4 C.F.R. § 91.4(b). The "payments" covered by Provision 1 are dues allotments made to the Union on behalf of an employee.

We reject the Union's claim that it is not subject to 5 U.S.C. § 5584 because it is not a "person" within the meaning of that provision. In determining the meaning of a Federal statute, the term "person" must be read to include "corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals[.]" 1 U.S.C. § 1. We conclude, therefore, that the Union, as an "association" within the meaning 1 U.S.C. § 1, is a "person" subject to the limitations on granting waivers of claims for erroneous overpayments established in 5 U.S.C. § 5584, including limitations on the amount of a claim which can be waived by an agency. Accord 61 Comp. Gen. at 220.

III. Provision 2

Section 15.04 A unit employee against whom an adverse action is proposed is entitled to:

a. At least 30 days' advance written notice, unless there is a reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reason(s) for the proposed action;

b. a reasonable time, but not less than 10 calendar days to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;

c. be represented by an attorney or other representative, including a Union representative, and;

d. a written decision and the specific reasons therefore at the earliest practicable date.

[Only the underlined portion is in dispute.]

A. Positions of the Parties

1. Agency

The Agency contends that the disputed portion of Provision 2 is inconsistent with its right to remove employees under section 7106(a)(2)(A) of the Statute. The Agency claims that under 5 U.S.C. § 7513(b)(1) management has the "right to remove an employee immediately after the seven-day notice required by section 7513(b)(2) where there is a reasonable cause to believe that such employee has committed a crime punishable by imprisonment." Agency's Statement of Position at 3. The Agency notes that subsection b of Provision 2, unlike subsection a, makes no exception for circumstances in which the Agency has reason to believe that an employee has committed a crime punishable by imprisonment.

The Agency asserts that negotiations to extend the reply period under the "crime provision" would impermissibly delay termination of an employee reasonably believed to have committed a crime. Citing the Authority's decision in National Federation of Federal Employees and U.S. Department of the Interior, U.S. Geological Survey, Eastern Mapping Agency, 21 FLRA 1105 (1986) (Provision 1) (Eastern Mapping Agency), the Agency contends that the delay imposed by the provision interferes with management's authority to remove employees under section 7106(a)(2)(A) of the Statute. Agency's Statement of Position at 3, 4.

2. Union

The Union contends that the disputed portion of Provision 2 constitutes a negotiable procedure under section 7106(b)(2) of the Statute. The Union states that the provision provides all unit employees, including those who the Agency has reasonable cause to believe have committed a crime punishable by imprisonment, 10 calendar days to respond to a proposed adverse action. The Union claims that it is not necessary for Provision 2 to include an exception for the "crime provision" under 5 U.S.C. § 7513(b). Union's Response at 8.

The Union notes that under 5 U.S.C. § 7513(b)(2), an employee has a right to not less than 7 days in which to respond to a proposed adverse action and that under 5 C.F.R. § 752.404(d) an employee may be placed in a nonduty status with pay and permitted up to 10 calendar days in which to respond. Union's Response at 8. The Union argues that under 5 U.S.C. § 7513(b)(2) the Agency has discretion to extend to 10 days the right to respond to the proposed action. The Union also argues that the provision does not affect the Agency's decision to place an employee in a nonduty status with pay where management reasonably believes that the employee has committed a crime punishable by imprisonment. Rather, the Union asserts that the provision extends the minimum time period for an employee's right to respond to coincide with the 10-day limitation on the time in which an employee can be in a nonduty with pay status under the "crime provision." Union's Response at 8-9.

The Union distinguishes Eastern Mapping Agency. The Union contends that the provision in that case "related to when management could impose discipline after management had decided what discipline to take against the employee." Union's Response at 9. According to the Union, Provision 2 provides for a 10-day period in which an employee may respond to proposed discipline where the Agency "has made no decision on what discipline, if any, to impose on an employee." Id. at 10. The Union argues that because the Agency is "prevented by law" from deciding to impose discipline until the employee has an opportunity to respond, the Authority's decision in Eastern Mapping Agency does not apply to this case. Id.

B. Analysis and Conclusions

We conclude that Provision 2 constitutes a negotiable procedure under section 7106(b)(2) of the Statute.

The disputed portion of Provision 2 would require the Agency to give all unit employees against whom an adverse action is proposed, including employees management reasonably believes have committed a crime punishable by imprisonment, not less than 10 calendar days in which to respond to the proposed adverse action orally and in writing and to furnish documentary support for their response. The effect of the provision is to extend from 7 calendar days to 10 calendar days the minimum period within which employees have the right to reply to a proposed adverse action.

Applicable law and Government-wide regulations establish procedures governing adverse actions. 5 U.S.C. § 7513(b) provides, in pertinent part, as follows:

§ 7513. Cause and procedure

. . . . . . .

(b) An employee against whom an action is proposed is entitled to--

(1) at least 30 days' advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action;

(2) a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer[.]

Regulations implementing the "crime exception" established in 5 U.S.C. § 7513(b)(1) are set forth in 5 C.F.R. § 752.404(d)(1) and provide, in relevant part, as follows:

§ 752.404. Procedures.

. . . . . . .

(d) Exceptions. (1) 5 U.S.C. 7513(b) authorizes an exception to the 30 days' advance written notice when the agency has reasonable cause to believe that the employee has committed a crime for which a sentence of imprisonment may be imposed and is proposing a removal or suspension (including indefinite suspension). The agency may require the employee to furnish any answer to the proposed action, and affidavits and other documentary evidence in support of the answer, within such time as would be reasonable, but not less than 7 days. When the circumstances require that the employee be kept away from the worksite, the agency may place him or her in a nonduty status with pay for such time as is necessary to effect the action.

In summary, 5 U.S.C. § 7513(b) provides for a 30-day notice to employees of proposed adverse actions except where there is reasonable cause to believe that a crime is involved. Both 5 U.S.C. § 7513(b)(2) and 5 C.F.R. § 752.404(d)(1) require an agency to give an employee a reasonable period, but not less than 7 days, in which to respond to a proposed adverse action, even in circumstances in which the agency has reason to believe that a crime has been committed that is punishable by imprisonment. See, for example, Ratley v. Department of the Army, 13 MSPR 316, 321-22 (1982). An agency may remove an employee after permitting the employee to respond, but not before a minimum of 7 days. While completing the action, the Agency may, if immediate action is required, place the employee in a nonduty status with pay for a period not to exceed 10 days, even if it takes longer to effect the removal.

Under Provision 2, the minimum period of time during which an employee may respond to a proposed agency adverse action--not less than 10 days--is not inconsistent with the 7-day minimum response period permitted under 5 U.S.C. § 7513(b)(2) and 5 C.F.R. § 752.404(d)(1). The 10-day period also is not inconsistent with the requirements of 5 C.F.R. § 404(d)(1) governing the amount of time that an employee may be placed in a nonduty with pay status when immediate action to remove the employee is necessary. Provision 2, therefore, is consistent with 5 U.S.C. § 7513(b) and 5 C.F.R. § 752.404(d).

The statutory requirements of a 30-day advance notice of a proposed adverse action and a minimum 7-day period of a right to respond to the proposed adverse action constitute procedures governing an agency's right to discipline or remove employees. Provision 2 extends the procedural protection of a minimum 7-day reply period afforded employees under law by adding 3 days to that minimum period. A 3-day extension of that period is within the agency's discretion under law. See, for example, American Federation of Government Employees, AFL-CIO, Local 1808 and Department of the Army, Sierra Army Depot, 30 FLRA 1236, 1253 (1988) (Provision 10) (requiring the agency to extend, from 30 to 60 days, the notice period required for removal or reduction in grade).

As the Agency indicates, however, Provision 2 may affect when it can remove an employee reasonably believed to have committed a crime punishable by imprisonment. The United States Court of Appeals for the District of Columbia Circuit has stated that "timing in matters of discipline is procedural and therefore subject to negotiation because the agency is not barred from 'acting at all.'" Department of Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505, 1510 (D.C. Cir. 1989), enforcing in relevant part sub nom. National Federation of Federal Employees and Department of the Interior, Bureau of Land Management, 29 FLRA 1491 (1987) (Provision 9, establishing a 10-day delay in effecting employee suspensions after the agency issued a decision letter, found to be negotiable).

We find that a delay of 3 days in the Agency's ability to implement the removal of an employee reasonably believed to have committed a crime so as to afford the employee additional time to respond to the charges involved in the proposed adverse action would not prevent the Agency from disciplining or removing an employee. Consequently, we conclude that Provision 2 is a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. See Bureau of Land Management, 873 F.2d at 1510 ("we must conclude that a ten-day delay in suspension after the agency issues a decision letter, which does not bar an agency from suspending an employee, is negotiable") (emphasis in original).

The Agency's reliance on the Authority's decision in Eastern Mapping Agency is misplaced. The Authority found that the provision in Eastern Mapping Agency was nonnegotiable because it applied to employees whom management had decided to remove after all avenues of appeal had been followed. The Authority specifically noted that "[i]n the circumstances addressed by Provision 1, the concerned employees are on notice that management has decided, after all avenues of appeal have been followed, to terminate them and that their separation date has been fixed." Eastern Mapping Agency, 21 FLRA at 1107. Further, the Authority determined that Provision 1 in Eastern Mapping Agency did not permit any exception to the 10-day delay required by the provision in circumstances governed by the "crime exception" in 5 U.S.C. §7513(b)(1).

The provision in this case concerns only the extension for 3 days of an employee's statutory right to respond to a proposed adverse action. Under the terms of Provision 2, even if the "crime exception" is invoked, so as to free the Agency from the requirement of advance notice, because the employee has a statutory right to respond, the Agency would not yet have made a final decision as to whether to remove the affected employee. Unlike Provision 1 in Eastern Mapping Agency, Provision 2 would not require the Agency to delay action against an employee after a final decision has been made to remove the employee. Rather, the provision extends the period of an employee's right to respond before a final decision is made. Provision 2, therefore, is distinguishable from Eastern Mapping Agency. See American Federation of Government Employees, Department of Education, Councils of Locals and U.S. Department of Education, 36 FLRA 130 (1990).

In conclusion, we hold that Provision 2 is a negotiable procedure under section 7106(b)(2) of the Statute.

IV. Provision 3

Section 24.06 Except as hereinafter provided employees shall not be required to furnish a medical certificate signed by a physician or medical health practitioner to substantiate requests for sick leave unless such leave exceeds three work days continuous duration. In no event shall the employee be required to furnish information not required on Standard Form 71, or be required to elaborate in the remarks column when the attending physician has certified that the employee has been under his/her professional care. It is agreed and understood that the EMPLOYER has the right to require an employee to furnish a medical certificate for each absence which he claims was due to incapacitation for duty on the following basis:

a. The employee has been counseled with respect to the use of his/her sick leave, a record of such counselling is on file and the employee's record subsequent to the counselling does not indicate satisfactory improvement;

b. The employee who [sic] has been furnished written notice that he/she must furnish a medical certificate signed by a physician or medical practitioner for each absence which he/she claims was due to illness. Such written notices will not be filed in the employee's official personnel file. In determining to place an employee on sick leave certification, the EMPLOYER shall not necessarily use periods supported by a valid certificate as reason to require the certification. It is further agreed that the EMPLOYER will review the sick leave record of each employee required to furnish a medical certificate for each absence which he claims was due to incapacitation for duty at six month intervals from the effective date of the requirement. Where such review reveals no reasonable evidence that the employee has abused sick leave privileges during the review period, the employee will be notified in writing that medical certification will no longer be required for each absence which is claimed as due to illness for a period of three days or less.

[Only the underlined portion is in dispute.]

A. Positions of the Parties

1. Agency

The Agency contends that the disputed portion of Provision 3 violates management's rights to direct employees, to assign work, and to discipline employees under section 7106(a)(2)(A) and (B) of the Statute. The Agency argues that the provision prevents supervisors from requiring employees to provide reasons for their use of sick leave other than the certification of the employee's own physician that the employee has been under the physician's care. Agency's Statement of Position at 4.

The Agency argues, based on the Authority's decision in Tidewater Virginia Federal Employees Metal Trades Council and Navy Public Works Center, Norfolk, Virginia, 15 FLRA 343 (1984) (Provision 1), that the provision would immunize employees from discipline for refusing to account for their work-related conduct--use of sick leave--because "it is clear that this provision is intended to permit employees to avoid being questioned about sick leave usage." Agency's Statement of Position at 4.

2. Union

The Union asserts that the disputed portion of Provision 3 constitutes a negotiable procedure under section 7106(b)(2) of the Statute because it does not concern employee accountability or employee certification for the use of sick leave. The Union states that the provision applies only in circumstances "where management requires an employee to submit medical certification for absences of more than 3 days or where sick leave abuse is suspected as provided in 5 C.F.R. 630.403." Union's Response at 11. The Union contends that the decisions upon which the Agency relies are not dispositive because medical certification of an employee's incapacitation for duty was not required in those cases. Id.

The Union also contends that, during negotiations, the parties agreed to follow the procedures contained in the provision when the Agency required medical certification of an employee's incapacitation for duty and agreed that "the employee need not furnish information not required on SF [Standard Form] 71 and need not elaborate in the remarks column[.]" Union's Response at 11-12.

Finally, the Union states that the provision requires an employee "to account for his or her conduct by produc[]ing a medical certification that the employee was indeed incapacitated for duty." Union's Response at 12. According to the Union, therefore, Provision 3 does not conflict with any management right because, by requiring employees to provide medical certification of their incapacitation for duty, the Agency has exercised its rights under the Statute. Id.

B. Analysis and Conclusions

We conclude that Provision 3 is nonnegotiable because it violates management's rights to discipline employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

Provision 3 would prevent the Agency, in circumstances where the Agency requires medical certification of an employee's incapacitation for duty, from requiring the employee to furnish any information not required on the Standard Form (SF) 71. If the Agency decided that it needed additional substantiation of an employee's incapacitation for duty, it could not require employees to provide any information concerning their sick leave usage beyond the information required on the SF 71, including the certification of the employee's physician contained on the SF 71.

Management's rights to discipline employees and assign work under section 7106(a)(2)(A) and (B) of the Statute include the right to hold employees accountable for conduct related to the performance of their jobs. The right to hold employees accountable for work-related conduct pursuant to section 7106(a)(2)(A) and (B) encompasses the right to require employees to account for their use of sick leave. The issue in this case, therefore, is whether management inquiries into an employee's use of sick leave can be limited to the information contained on an SF 71.

Under applicable Office of Personnel Management (OPM) regulations, an employee may be excused from work with pay when the employee (1) receives medical, dental or optical examination or treatment; (2) is incapacitated for duty because of sickness, injury or pregnancy and confinement; (3) is required to give care and attendance to an immediate family member afflicted with a contagious disease; or (4) has been exposed to a contagious disease. 5 C.F.R. § 630.401. An employee's request for sick leave, however, must be supported by "administratively acceptable" evidence. 5 C.F.R. § 630.403. An agency may determine that an employee's certification of the reasons for his or her absence constitutes administratively acceptable evidence. Id. The agency may also require, for an absence in excess of 3 workdays, or for a lesser period when the agency determines it to be necessary, that the employee provide a medical certificate "or other administratively acceptable evidence as to the reason for the absence." Id. See also Federal Personnel Manual Supplement 990-2, Subchapter S4-2-b.

In short, nothing in OPM regulations limits an agency's right to require evidence in support of a request for sick leave beyond that provided on an SF 71. Under those regulations, an agency may, but need not, accept an employee's SF 71 as sufficient evidence of a reason to grant sick leave. The Union cites no authority that would support a conclusion that management's right under section 7106(a)(2)(A) and (B) to hold employees accountable for their use of sick leave does not extend beyond the right to require the submission of an SF 71. Consequently, we conclude that management has the discretion under section 7106(a)(2)(A) and (B) of the Statute to require an employee to provide information other than that contained on an SF 71.

An agency may properly conclude that a medical certificate is insufficient to establish that an employee was incapacitated by illness justifying the employee's absence from work. See Roberson v. Veterans Administration, 27 MSPR 489, 492 (1985). By limiting management's inquiries as to an employee's use of sick leave to the information contained on the SF 71, Provision 3 restricts management's right to hold employees accountable for the use of sick leave. Accordingly, we find that Provision 3 directly interferes with management's rights, under section 7106(a)(2)(A) and (B), to assign work and discipline employees.

The Union argues that existing Authority precedent in this area is distinguishable. Because Provision 3 applies only when management has required an employee to furnish medical certification as provided on SF 71, the Union claims that it is different from those situations where employees are required to provide information on their use of sick leave but are not required to furnish medical certification. We do not agree.

Contrary to the Union's argument, we find that if management requires an employee to furnish the medical certification provided on SF 71, it is not thereby precluded from exercising its rights under 7106(a)(2)(A) and (B) of the Statute to require other evidence of an employee's incapacity for duty. Limiting management's inquiry to the certification of the employee's physician on SF 71 directly interferes with the Agency's rights under section 7106 to require an employee to account for his or her use of sick leave.

We note that the Union has not claimed that Provision 3 constitutes an appropriate arrangement under section 7106(b)(3). Consequently, we will not address that issue in this case.

For the reasons stated above, we find that Provision 3 violates management's rights to discipline employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. Provision 3, therefore, is nonnegotiable. In view of our determination, we need not address the Agency's remaining argument that Provision 3 directly interferes with management's right to direct employees under section 7106(a)(2)(A) of the Statute.

V. Order

The Agency must rescind its disapproval of Provision 2. The petition for review concerning Provisions 1 and 3 is dismissed.^(*)

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FOOTNOTES:
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*/ In finding Provision 2 to be negotiable, we make no judgment as to its merits.

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