In NAIL, Local 7 (NAIL),^[1]the Authority held, in relevant part, that the Agency had not established that a provision concerning sick-leave requests (the provision) is contrary to government-wide regulation or law. Accordingly, the Authority ordered the Agency to rescind its disapproval of the provision. The Agency has filed a motion for reconsideration of the Authority’s decision in NAIL. There are two questions before us. 

 

 

The second question is whether an alleged change in the Authority’s standard for determining whether a provision is an appropriate arrangement within the meaning of § 7106(b)(3) of the Federal Service Labor‑Management Relations Statute (the Statute)^[2] establishes extraordinary circumstances that warrant reconsideration of NAIL.^[3] Regardless of what standard applies with respect to § 7106(b)(3), the Agency had an obligation to assert that the provision affected a particular management right under § 7106(a) of the Statute in order to demonstrate the provision’s inconsistency with § 7106. And as the Agency failed to identify an affected management right under § 7106(a), the answer to the second question is no. 

 

 

The provision states, in pertinent part:         “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.”^[4] In NAIL, the Authority resolved the parties’ dispute concerning the provision’s meaning,^[5] and ordered the Agency to rescind its disapproval of the provision.^[6] 

 

Concerning the provision’s meaning, the Authority held, in relevant part, that the provision’s first sentence would require the Agency to accept an employee’s self‑certification in support of a sick-leave request for three or fewer days unless the employee is on sick-leave restriction.^[7] Regarding requests for more than three days of sick leave, the Authority held that, under the second sentence, the Agency would be permitted, but not required,to accept an employee’s self‑certification for a sick‑leave request of more than three days.^[8] In particular, based on the Union’s clarification, the Authority interpreted the second sentence to mean that the Agency would retain the discretion to reject an employee’s      self-certification – and require medical certification – for sick-leave requests of more than three days, even when an employee asserted a “justifiable reason” for self‑certification.^[9]

 

 

Next, the Authority evaluated the Agency’s argument that the provision conflicts with § 630.405(a). That regulation provides that an agency “may . . . require a medical certificate . . . for an absence in excess of [three] workdays, or for a lesser period when the agency determines it is necessary.”^[10] But the regulation also states that an agency “may consider an employee’s self‑certification as to the reason for his or her absence as administratively acceptable evidence, regardless of the duration of the absence.”^[11] In this regard, the Authority noted that the U.S. Supreme Court has held that lawmakers’ use of “the word ‘may’ . . . usually implies some degree of discretion.”^[12] Accordingly, the Authority found that the Agency has discretionary authority to accept something other than medical certification to support sick-leave requests without running afoul of the regulation.^[13] And because of this discretionary authority, the Authority held that the Agency could exercise its discretion to agree, in the provision, to accept the self‑certification of an employee who is not on sick-leave restriction to support a sick‑leave request of three or fewer days.^[14]

 

In addition, the Authority found that interpreting § 630.405(a) as “permissive and discretionary”^[15] would be consistent with the Authority’s decisions in AFGE, AFL‑CIO, Local 2052 (Local 2052)^[16] and                     U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia (Navy).^[17] In this regard, the Authority held in Local 2052 that a proposal that prohibited an agency from requiring anything other than self-certification to support an employee’s sick‑leave request did not conflict with the discretion conferred on agencies by the regulation.^[18] Similarly, in Navy, the Authority found that an arbitrator’s enforcement of a contract provision that required an agency to accept     self-certification in certain circumstances did not conflict with the regulation.^[19] Accordingly, the Authority held that both decisions supported a conclusion that the Agency’s discretion to require a medical certificate may be the subject of collective bargaining.^[20] 

 

Thus, based on the regulation’s wording and Authority precedent, the Authority held in NAIL that § 630.405(a) authorizes the Agency to accept self‑certification to support sick leave of any duration, and does not compelthe Agency to require medical certification in any circumstance.^[21] As a result, the Authority found the provision consistent with the discretion conferred on the Agency by § 630.405(a),^[22] and held that the Agency had not established that the provision conflicts with § 630.405(a).^[23]

Further, the Authority addressed the Agency’s argument that the provision is “[n]ot [a]n [a]ppropriate [a]rrangement”^[24] because it is “outside the duty to bargain under §[]7106(b)(3) of the Statute.”^[25] Specifically, the Authority stated that in order for an agency to demonstrate that a proposal or provision is contrary to § 7106, the agency must allege and demonstrate that the proposal or provision affects a management right; if it does not do that, then it is unnecessary to resolve any claims regarding whether the proposal or provision falls within an exception set forth in § 7106(b).^[26]

 

Because the Agency did not assert that the provision affects the exercise of any management rights under § 7106(a), cite any rights under § 7106(a), or explain why the provision is otherwise contrary to law under § 7106, the Authority concluded that the Agency had not met its regulatory burden to demonstrate that the provision is contrary to law.^[27] Further, the Authority rejected the dissent’s position that the allegedly “unsteady, contextual framework”^[28] used to resolve claims regarding § 7106(b)(3) relieved the Agency of its obligation to properly raise and support its arguments. In this regard, the Authority stated that “[t]here can be no (principled) application of § 7106(b)(3) at all in the absence of a claim under § 7106(a).”^[29] And the Authority stated that permitting the Agency to rely on the Authority to “discern (guess?) which of the nineteen management rights in § 7106(a) the Agency may have intended to raise . . . [would] make[] the neutral adjudicator an agency advocate [and] . . . turn[] on its head any notion of fair and orderly decision making.”^[30]

 

 

 

The Authority’s Regulations permit a party to request reconsideration of an Authority decision.^[31] But “a party seeking reconsideration ‘bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action.’”^[32] One recognized ground for granting reconsideration is that the Authority erred in its conclusions of law.^[33] However, attempts to relitigate conclusions reached by the Authority are insufficient to establish extraordinary circumstances.^[34] And an argument based on a misinterpretation of the Authority’s decision does not establish extraordinary circumstances warranting reconsideration of that decision.^[35]

 

 

The Agency argues that NAIL warrants reconsideration because the Authority erroneously interpreted both 5 C.F.R. § 630.405(a)^[36] and the Authority’s decisions in Local 2052 and Navy.^[37] First, the Agency argues that NAIL erroneously “narrowed the scope of the regulation”^[38] because the provision would require the Agency to accept self‑certification for sick leave requests of more than three days where an employee presented a “justifiable reason.”^[39] But in NAIL, as discussed above, the Authority specifically stated that the Agency would retain the discretion to reject an employee’s self-certification – and require medical certification – for sick leave requests of more than three days, even when an employee asserted a “justifiable reason” for self‑certification.^[40] Thus, because the Agency’s argument misinterprets NAIL, it provides no basis for reconsidering that decision.^[41]

 

In addition, the Agency accuses the Authority of “stepp[ing] in the shoes of the Office of Personnel Management (OPM),” and argues that “[t]here can be no doubt that OPM did not intend to give employees who were not on sick[-]leave restriction a ‘free pass’ in all circumstances where the absence did not exceed three days.”^[42] Rather than “stepp[ing] in the shoes” of OPM,^[43] we note that the Authority in NAIL relied on the regulation’s express wording that an agency “may consider an employee’s self‑certification as to the reason for his or her absence as administratively acceptable evidence, regardless of the duration of the absence.”^[44] And the Agency has cited no authority for its position that OPM would interpret its regulation differently. Because the Agency’s argument attempts to relitigate the Authority’s conclusion in NAIL that the regulation grants the Agency discretionary authority to contractually agree to accept self‑certification in certain circumstances, this argument does not establish extraordinary circumstances necessary to warrant reconsideration.^[45]

 

Next, the Agency argues that the Authority “[m]isconstrued” the Authority’s decisions in Local 2052 and Navy because the provision in NAIL involved an employee’s “initial[]” sick-leave request, and Local 2052 and Navy “addressed circumstances where employees had already submitted initial medical certifications.”^[46]       But – as in NAIL – both Local 2052 and Navy concerned the negotiability or enforceability of contract proposals or provisions that require an agency to exercise its regulatory discretion to accept self‑certification in certain circumstances.^[47] And, in Local 2052, the Authority expressly held that requiring an employee to provide anything more than self-certification was “discretionary with the [a]gency even for absences of more than     [three] days or where sick leave abuse is suspected.”^[48]  Thus, the Agency’s argument provides no basis for finding that the Authority erred in NAIL by relying on Local 2052 and Navy.

 

 

 

In NTEU,^[49] the Authority held that it would find an agreed-upon contract provision to be an “appropriate” arrangement under § 7106(b)(3) of the Statute unless the provision “abrogates, or waives, a management right.”^[50] Subsequently, in U.S. Department of the Treasury, IRS, Office of Chief Counsel, Washington, D.C. (IRS),^[51]the U.S. Court of Appeals for the District of Columbia Circuit held that the Authority “acted arbitrarily and capriciously” by applying the “abrogation” standard for agreed-upon provisions, while applying the “excessive[‑]interference” standard to determine whether bargaining proposals are “appropriate” arrangements under § 7106(b)(3).^[52] 

 

The Agency argues that IRS triggered a “shift” in the applicable standard for determining whether a provision is an appropriate arrangement under § 7106(b)(3), and that this establishes extraordinary circumstances warranting reconsideration of NAIL.^[53] However, the Agency does not explain how its “uncertainty” concerning which standard the Authority might apply with respect to § 7106(b)(3) of the Statute “effectively hamstrung [the Agency] in making an argument that [the provision] affected a management right” under § 7106(a).^[54] In this regard, we note that under both the “abrogation” and the “excessive[‑]interference” standards,^[55] a party arguing that a proposal or provision is not an appropriate arrangement under § 7106(b)(3) must first identify a § 7106(a) right and establish that the proposal or provision affects that right.^[56] As the Authority stated in NAIL,if the party does not meet this initial burden concerning § 7106(a), then it is unnecessary for the Authority to resolve any claims regarding whether the proposal or provision falls within an exception to § 7106(a) set forth in § 7106(b).^[57] In NAIL, the Agency did not assert that the provision affects the exercise of any management rights under § 7106(a), cite any rights under § 7106(a), or explain why the provision is otherwise contrary to law under § 7106.^[58] In fact, even in this motion for reconsideration, the Agency still does not identify any § 7106(a) right that the provision allegedly affects.

 

As stated previously, in NAIL,the Authority rejected the position that any alleged uncertainty as to the framework used to resolve claims regarding § 7106(b)(3) relieved the Agency of its obligation to properly raise and support its arguments because “there can be no (principled) application of § 7106(b)(3) at all in the absence of a claim under § 7106(a).”^[59] As the Agency’s argument attempts to relitigate this conclusion, the argument does not establish extraordinary circumstances necessary to warrant reconsideration.^[60]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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