Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
I am a Chief Steward and the federal employees I represent are in a Collective Bargaining Agreement. I am looking for answers to questions I have regarding an employee who has provided all the necessary documentation after taking unscheduled leave but who was still issued a letter of requirement (LOR).
First, is there a specified time limit to show a pattern? Can two days a week constitute a pattern? Also, does the supervisor have to give advance notice of any adverse action to the union and the employee represented by one, such as the LOR?
Does the fact that the employee is a reservist and that some of the leave in question is either before or after his required duty play any factor? Also, is the LOR rendered moot since the leave in question was approved by the supervisor?
The employee also has an Unfair Labor Practice case for another issue, so could this be considered reprisal? Finally, the supervisor informed me that he is performing an investigation on other issues. I thought this was not authorized; is this correct?
As to your first two questions, a letter of requirement, or a leave restriction letter, is not an adverse action. It is a notice to the employee of change in the usual method of requesting sick leave. For example, an employee might be, and often is, required to furnish a doctor’s explanation for an unscheduled absence. According to OPM regulations, no advance notice is required. In the absence of a collective bargaining agreement to the contrary, a pattern of absences could be two.
Many CBAs bargain this issue and specify “how many” constitutes a pattern and whether advance notice is required before a LOR is received. In the absence of precise language, an arbitrator might look at past practices to determine the CBAs meaning, particularly for a word like “pattern.”
As to your last four questions, I don’t see how the reservist duty would affect an LOR. Approved leave does not moot an LOR, which usually states how long it is in effect. Whether an LOR for a ULP is reprisal is for the Federal Labor Relations Authority to decide and very much depends on the surrounding circumstances. There is nothing in the law that prohibits a supervisor from investigating any workplace issue, except that criminal matters are required to be forwarded to the IG.
Bill Bransford is managing partner of Shaw Bransford & Roth PC.
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