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Article 30
Training

Section 1

• A. The training and development of employees within the unit is a significant investment. In conjunction with this goal, the Employer will, as funds permit, make available to all employees the training it deems necessary for the performance of the employees' presently assigned duties or proposed assignments.
• B. In accordance with 5 CFR Part 300 and the Uniform Guidelines on Employee Selection Procedures, the Employer may develop and administer assessments (including but not limited to written and on-the-job assessments), to determine the retention and/or advancement of employees in trainee/developmental positions, up to the journey level and above, as applicable. Such assessments shall not be implemented without appropriate negotiations with the Union, as provided for by Article 47. Non-probationary employees, who do not demonstrate an acceptable level of proficiency or performance on such assessments, initially and/or after an appropriate performance improvement period, should be aware that the Employer may take an unacceptable performance action under 5 U.S.C. Chapter 43 and Article 40 of this Agreement based thereon; the Employer will, consistent with staffing needs, make reasonable efforts to place employees who have successfully completed a probationary period with the IRS in a position that takes full advantage of their skills and abilities.

Section 2

• A. Employees are responsible for self-development, for successfully completing and applying authorized training, and for fulfilling continued service agreements. In addition, they share with the Employer the responsibility to identify training needed to improve individual and organizational performance and identify methods to meet those needs, effectively and efficiently.
• B. The Employer has determined that any expanded use of competencies into other human resource systems, such as promotions, will not proceed until appropriate validation is completed. Further, the Employer will notify the Union and negotiate to the extent required by law using the procedures in Article 47.
• C. Where the Employer develops and administers valid training assessments (including needs assessments), the results of such assessments may be provided to the training coordinator and first-line supervisor, along with feedback from the classroom and on-the-job instructors, as appropriate. The results will not be used for performance evaluation purposes. Aggregate data will be supplied to the Employer to make decisions regarding training and developmental needs for

• groups of individuals. An employee may choose to reveal assessment scores to a line manager to assist in the career development process but is under no obligation to do so.
• D. Each employee will be entitled to establish a Career Learning Plan (CLP) with assistance and advice provided by the Employer. The primary emphasis of the plans will be, first, to address the competencies (or knowledge, skills, and abilities) needed by the employee in his/her current position; second, to prepare them for new career opportunities; and third, to address the competencies (or knowledge, skills, and abilities) needed for advancement beyond his/her current journey level. Although the primary responsibility for executing a CLP for career advancement falls with the employee, the Employer will provide reasonable advice and assistance. Each plan shall establish a series of milestones and shall state the responsibilities of each party to realize such milestones. For employees who have a CLP approved by the Employer, the Employer will make reasonable efforts, consistent with workload and staffing needs, to approve up to sixteen (16) hours of administrative time per calendar year for self-directed training or developmental activities, if such activities are related to the employee's current or prospective job duties.

Section 3

• A. The Employer will maintain information and furnish counseling and guidance about suitable and available educational resources. The Union on its part, will encourage employees to take advantage of suitable self-development opportunities.
• B. The Employer will publish annually the Enterprise Learning Management System (ELMS) course catalog on the ELMS website.

Section 4

• A. The Employer has determined to provide appropriate training to all employees whose positions are abolished or significantly reengineered as a direct result of organizational restructuring, work elimination, introduction of new duties, transfer of work, or implementation of new technology before expecting employees to perform new or greatly altered duties. Whenever possible, such training will occur or be identified and scheduled within six (6) months.
• B. The Employer has determined that employees whose positions are abolished or significantly reengineered, as described above, will be provided the opportunity for training in the new work. The content, delivery method, and length of such training will be determined by the results of an appropriate assessment based upon the competencies required to be successful in the new position. Following the completion of the training, the need for additional assistance will be determined on a case-by-case basis by the Employer in consultation with the training professionals assigned to the office. Such determinations will consider:
  • 1. what work remains in the commuting area at the employee's current grade level;
  • 2. employee's experience (internal, external, and volunteer work) and education;
  • 3. the results of a preliminary skills evaluation or competency assessment conducted with the assistance of the local internal or external training or counseling staffs;
  • 4. business needs;
  • 5. OPM qualification standards; and
  • 6. employee's CLP, where applicable.

Section 5

• A. Employees will be reimbursed by the Employer for those portions of Certified Public Accountant (CPA) or bar review courses that are job related.
• B. Employees shall be reimbursed for all authorized expenses for out-service training when all of the following conditions are met:
  • 1. the training will enable the employees to meet one (1) of their CLP milestones or competency needs, to the extent allowable under Government-wide regulation;
  • 2. comparable training is not available in the next nine (9) months through Employer-developed courses and it would be too costly for the Employer to develop a suitable program at the time;
  • 3. reasonable inquiry has failed to disclose suitable, adequate and timely programs being offered by other Government agencies within the local area;
  • 4. the course meets the needs of the employee and of the Employer as well or better than other courses of its nature which also may be available within the next nine (9) months;
  • 5. the course is not being taken solely for the purpose of obtaining a degree; and
  • 6. funds are available to pay for the training without deferring or canceling higher priority commitments.
• C. If an employee fails to successfully complete out-service training, he/she shall reimburse the Employer for all tuition and related expenses incurred by the Employer for such out-service training, unless the Employer's directed action resulted in the employee's failure to successfully complete the training.
• D. Limited administrative time may be provided for employees who attend, at their own expense, out-service training for career enhancement. The

• appropriate amount of administrative time provided will be determined by the Employer on a case-by-case basis. If the employee fails to satisfactorily complete the course, the subsequent courses will be on the employee's own time until he or she exhibits satisfactory completion of a subsequent course.

Section 6

• A. When training is given primarily to prepare employees for promotion, selection for the training will be made under the competitive promotion procedures. This subsection will not be applicable to training provided to employees in career ladder positions who have not reached the full performance level.
• B. Selection for bargaining unit collateral duty on-the-job instructor (OJI) cadres (except for Center Campuses) and classroom instructor cadres will be made under competitive promotion procedures. The qualifications and geographic locations, if applicable, for the cadres will be included on the announcement.
• C. The Employer has determined that opportunities for classroom and on-the-job instructor assignments will first be offered to those employees who have successfully completed Employer approved instructor training and are certified in that regard.
  • 1. The Employer will solicit volunteers and consider the following factors in making instructor assignments: availability, teaching expertise, subject matter expertise (including recency of technical training), and recency of instructor experience. Any ties among equally qualified instructors will be broken by IRS EOD, first among qualified candidates within the commuting area where the training is to take place, and then among remaining qualified instructors. If insufficient qualified employees volunteer, the Employer will select qualified employees.
  • 2. Management will make every effort to rotate instructor assignments among qualified instructors so far as training and instructor requirements permit.
• D. When the Employer is unable to accommodate all applicants for after hours courses established by the Employer and financed in whole or in part by the Employer, available slots will be given out by the Employer on the basis of the order in which the applications are received. Applications not accommodated will be given priority status when the same course is repeated.
• E. Either party may open negotiations during the first year of this Agreement, consistent with Article 47, Section 2, to discuss the following topics:
  • 1. the assignment of certified OJI and classroom instructors to training groups or classes;
  • 2. a process for the continuing certification of instructors who have successfully completed Employer approved instructor training, have been certified, and have instructed classes; and
  • 3. payment of a retention allowance to instructors assigned to classes outside their commuting area or an equivalent award.

Section 7

Job related IRS on-line courses will be made available to employees on a voluntary basis after hours. No administrative time will be available to the employee for the purpose of taking such courses (with the exception of employees referenced in Section 4 above).

Section 8

An employee will have the right to raise lack of necessary training as a defense to a disciplinary, adverse or unacceptable performance action or any action by the Employer that has a negative impact on performance.

Section 9

• A. Employees in the GS-905 classification will be reimbursed for continuing legal education courses consistent with the provisions of Sections 1, 2 and 5 of this Article.
• B. The Employer will seek continuing legal education accreditation for the continuing professional education (CPE) courses offered to GS-905 employees.

Section 10

If permitted by budget, the Employer will maintain the Tuition Assistance Program (TAP). If the Employer decides to terminate or reduce the budget for the TAP, it will notify National NTEU and negotiate to the extent required by law.

Section 11

• A. The local Labor Management Relations Committees (LMRCs) may advise the Employer on:
  • 1. present training;
  • 2. suggestions for additional training;
  • 3. training needs as a result of reassignments, changes in law, and the type of work assigned; and
  • 4. need for refresher training.

Section 12

Where the employee takes an on-line course sponsored by IRS, the Service will be obligated to provide the employee an electronic version of the training materials, subject to any applicable copyright restrictions. Moreover, an employee may request to take the on-line course on Flexiplace consistent with the requirements of Article 50 of this Agreement.

Section 13 Miscellaneous Travel

• A.
  • 1. When training is scheduled in a location outside the employee's commuting area, the employee will be allowed to travel home or anywhere else outside the training site in accordance with the IRS Travel Guide, other governing regulations, and other sections of this Agreement. Reimbursement for the travel will also be made in accordance with the IRS Travel Guide, other governing regulations, and other sections of this Agreement.
  • 2. When training is scheduled outside the employee's commuting area and public transportation is not readily available, the Employer will provide reasonable access to public transportation, or in the alternative, authorize other means of transportation, when necessary, in accordance with the IRS Travel Guide, and other sections of this Agreement.
• B.
  • 1. The Employer will make every reasonable effort to secure accommodations that are generally comparable to a typical private hotel room (e.g., private bathroom, personal phone, TV, refrigerator, etc.), subject to requirements in Article 29, subsection 4B.
  • 2. Otherwise eligible employees who attend training conferences may participate in the Travel Gainsharing program (e.g., they may volunteer to share a room, etc.).
  • 3. When the Employer has not contracted for accommodations in accordance with Article 29, subsection 4B, the employee will have the option of off-site housing in accordance with the IRS Travel Guide and other governing regulations.
  • 4. Absent a legitimate business reason, the Employer will insure that employees will have access to computers at training facilities so that they may access their e-mail accounts in and outside of IRS, as well as the Intranet and Internet.
• C. Overtime When the Employer directs an employee to participate in job required training, a reasonable amount of time as determined by the Employer may be authorized for study outside the employee's regular duty hours; under such circumstances, such study time will be compensable, as specifically determined in advance by the Employer. The Employer will not mandate overtime for the purpose of study, however if the employee chooses not to study, the employee will still be responsible for the course materials. The limits may be set by the employee's immediate supervisor or by the instructor in formal classroom situations where the instructor assumes supervisory responsibilities for the duration of the training.
• D. Unless otherwise specifically noted, all the terms of this section apply to classroom and on-the-job instructors.
• E. Testing will be done with full respect given to the need to provide reasonable accommodations to employees with disabilities, e.g., un-timed tests.
• F. When employees are assigned to a training location during their first year with IRS and they are to be at that location for more than six (6) weeks, the Employer will, to the extent possible, treat that location as an IRS facility for purposes of providing the Union, upon request, with temporary meeting and conference room(s), telephone access, mail drop(s), means of distributing printed material to trainees, etc.
• G. Reasonable Accommodations The Employer recognizes that where it provides facilities for training, sleeping, eating, etc., it is bound to provide any reasonable accommodations required for disabled employees by law.

Section 14

• A. To the extent that the Employer or OPM establish that employees must be members of particular professional societies and organizations in order to be employed in an IRS position, the Employer will reimburse employees for their dues, subject to the availability of funds.
• B. For employees who occupy GS-905 attorney positions, the individual must be a member in good standing of a State Bar and authorized to practice law in order to be reimbursed for State Bar dues.

Article 31
Leave Sharing Program

Section 1 General

• A. The Leave Sharing Program was established to assist IRS employees who are facing or who have faced personal/family medical emergencies. Leave Sharing consists of two programs: Leave Bank and Leave Transfer. To receive donated leave from the Leave Bank, an employee must be a member of the Leave Bank. No membership is necessary to receive donated leave under the Leave Transfer Program. An employee who is a member of the Leave Bank may apply for leave through both the Leave Bank and Leave Transfer Programs. Application for the leave sharing programs may be made retroactively, but no later than thirty (30) days after the employee has returned from leave required by the medical emergency.
• B. For purposes of this Article, the following definitions apply:
  • 1. A family member is an employee's spouse, and parents thereof; children, including adopted

• • children, and spouses thereof; parents; brothers and sisters, and spouses thereof; and any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.
  • 2. Incapacitation means the inability to work, attend school, or perform other regular daily activities because of a serious health condition or treatment or recovery from a serious health condition.
  • 3. Leave year means pay period one (1) through pay period twenty-six (26) or twenty-seven (27).
  • 4. Medical emergency means a medical condition of an employee or a family member that is likely to require an employee's absence from duty for a prolonged period of time and results in a substantial loss of income to the employee because of the unavailability of paid leave. The period of time a doctor determines a mother is incapacitated after giving birth qualifies as a medical emergency, whether the child is healthy or ill.
  • 5. Substantial loss of income means an absence from duty without available paid leave for at least twenty-four (24) work hours (or in the case of a part-time employee, or an employee with an uncommon tour-of-duty, at least thirty percent (30%) of the average number of hours in the employee's bi-weekly scheduled tour-of-duty).

Section 2 Leave Bank Program

• A. The IRS Leave Bank Program enables enrolled employees who have a medical emergency to use leave donated to the Leave Bank by IRS employees.
• B. To join the Leave Bank, an employee must complete Form 9058 and return it to the Leave Bank Coordinator during a Leave Bank open season. Contact information for the Coordinators will be available on the ERC website. There are usually two (2) open season periods for Leave Bank membership: one that runs from December 1 through mid-January and another at approximately mid-year.
  • 1. To enroll, the employee must donate the number of hours equal to his or her annual leave accrual for one (1) pay period.
  • 2. An employee may also join the Leave Bank within thirty (30) days of being hired or returned to duty from extended leave.
  • 3. The maximum amount of annual leave an employee may donate is one-half (1/2) of the amount of annual leave the employee will accrue during the leave year. If an employee donates annual leave that he or she has not yet earned, the donated annual leave becomes the donating employee's liability should he or she leave the Service before the leave is earned.
• C. To apply for a Leave Bank donation, the employee must submit application Form 12303 to the Leave Bank Coordinator. Contact information for the Coordinators will be available on the ERC website. If a Leave Bank member is not capable of applying on his or her own behalf, an authorized personal representative may make the written application.
• D.
  • 1. If an employee has use or lose annual leave at the end of the year and would like to donate it to the Leave Bank, the employee must complete Form 9058 and submit it to the Leave Bank Coordinator. Contact information for the Coordinators will be available on the ERC website. Use or lose annual leave donations do not constitute a Leave Bank membership donation, unless the use or lose donation is donated during an official open season period.
  • 2. During October, the Employer will notify each employee of their right to donate unused annual leave to the Leave Bank by using the notice section of the Earnings and Leave Statement and advertising on the IRWeb.
• E. Additional Leave Bank information, as well as the roles and responsibilities of the Leave Bank Board and the Leave Bank Coordinators are outlined in an Annual IRS/NTEU Program Letter.

Section 3 Leave Transfer Program

• A. The Leave Transfer Program allows an employee to transfer annual leave to an approved leave recipient (excluding the employee's supervisor) up to one-half (1/2) of the amount of annual leave the employee will accrue during the leave year. Consistent with its right to waive the limitations on donating annual leave, the Employer will permit an employee to transfer up to seventy-five percent (75%) of accrued annual leave to a family member.
  • 1. To donate leave to an employee of the IRS or of another Federal agency, the employee must contact the Leave Transfer Coordinator (contact information will be available on the ERC website).
  • 2. An employee must provide documentation showing that the proposed leave recipient has been approved to receive donated annual leave (e.g., an officially approved Leave Transfer Program application).
• B. To apply to become a leave transfer recipient, an employee must complete Form 12303 and submit it to the Leave Transfer Coordinator. Contact information for the Coordinators will be available on the ERC website.
  • 1. The Leave Transfer Coordinator shall approve all applications to become a leave transfer recipient where Form 12303 indicates a medical professional

• • has determined the employee, or his or her family member, has a medical emergency.
  • 2. The Leave Transfer Coordinator will assist as appropriate in preparing or will prepare the employee's solicitation memorandum. Decisions on target audience for solicitation will be made by the employee seeking donations and the employee's manager. The parties agree, however, that generally the target audience will be the employee's Operating Division or equivalent or post-of-duty, as appropriate.
  • 3. When an employee receives donated leave, it may be used only for the medical emergency for which it was donated.

Section 4 Emergency Leave Transfer Program

• A. In the event of major disasters or emergencies declared by the President, such as floods, earthquakes, tornadoes, terrorist acts, etc., that result in severe adverse effects for a substantial number of employees, the President may direct the Office of Personnel Management (OPM) to establish an Emergency Leave Transfer Program. Under such a program, an employee in any Executive agency may donate annual leave for transfer to employees of his or her agency or to employees of other agencies who are adversely affected by the disaster or emergency. This program provides Federal employees with a special opportunity to help their fellow workers in times of need.
• B. The Service is in the best position to determine whether donated annual leave is needed by its employees in disaster situations and can quickly facilitate the transfer of donated annual leave among agencies. The Employer is responsible for determining whether, and how much, donated annual leave is needed by affected employees; approving leave donors and/or leave recipients within the Service; and facilitating the distribution of donated annual leave from approved leave donors to approved leave recipients within the Service.
• C. When the amount of annual leave donated by its employees is not sufficient to meet the needs of its approved emergency leave recipients, the Employer will notify OPM.
• D. Employees requesting forms for donating and receiving annual leave under the Emergency Leave Transfer Program will be referred to OPM's web site at http://www.opm.gov/forms/html/emerg.htm.

Article 32
Annual Leave

Section 1

• A.
  • 1. The Employer has determined that annual leave will be granted in a manner which permits each employee to take consecutive days off up to two (2) consecutive weeks or more of annual leave each year. The Employer shall make every reasonable effort to grant employee requests for annual leave consistent with workload and staffing needs.
  • 2. When annual leave is denied, and upon request by the employee, the Employer will provide a statement of the reason(s) for the denial of the leave request. When a workload-related reason is given in a call site for denying a request for annual leave, the Employer will, upon the request of the impacted chapter, provide the information relied upon to support the leave denial.
  • 3. Employees may utilize annual leave in fifteen (15) minute increments. Annual leave may not be charged in increments of less than fifteen (15) minutes.
• B. Employees whose leave balances on September 15 disclose that they have leave which is, or will become, "use or lose" will submit, on or before October 1, plans to use such leave. The Employer shall make every reasonable effort to grant the employee's request for annual leave consistent with workload and staffing needs. Conflicts of choices related to the foregoing will be subject to the provisions of subsection 1C below. If "use or lose" annual leave is approved and subsequently cancelled by the Employer, the Employer will provide the employee with confirmation of the cancellation in writing. Once the employee makes a proper and timely request for the cancelled annual leave to be restored, the Employer will grant the restoration of the "use or lose" annual leave, confirmed in writing.
• C. Subject to its right to assign work, the Employer will resolve a conflict in requests by employees in the same occupation for scheduled annual leave by granting preference to the employee with the most service as determined by enter on duty (EOD) date. An employee's approved annual leave will not be disapproved if an employee with an earlier EOD date subsequently requests leave for the same period.
• D. In order to facilitate the making of personal plans by employees, the Employer agrees to respond to annual leave requests as soon as possible.

Section 2

The Employer may approve a change in selection of leave time provided another employee's choice is not affected.

Section 3

• A. Seasonal employees who are to be placed in a non-pay status for a period of ten (10) workdays or less may charge such time to available annual leave.
• B. The Employer may refuse to grant annual leave requests made by seasonal employees for any period which includes any of the last ten (10) workdays of any fiscal year, where such refusal is related to staffing and/or budgetary restrictions.
• C. Except as otherwise provided in this Article, annual leave requests made by seasonal employees will be subject to the same considerations as requests made by other employees. The Employer shall make every reasonable effort to grant a seasonal employee's request for annual leave during peak season consistent with workload and staffing needs.

Section 4

Upon advance request, the Employer shall make every reasonable effort to grant, consistent with workload and staffing needs, an employee's request for annual leave for a workday which occurs on a religious holiday.

Section 5

The Employer has determined that an employee will be granted annual leave or leave without pay for up to five (5) days in case of a death in the immediate family.

Section 6

• A. The granting of advanced annual leave by the Employer is discretionary. However, the Employer has determined that it will grant advanced annual leave when the employee requesting advanced annual leave:
  • 1. has completed the first year of his/her probationary or trial period;
  • 2. has served more than ninety (90) days in his or her current appointment;
  • 3. is eligible to earn annual leave;
  • 4. does not request more advanced annual leave than would be earned during the remainder of the leave year or for the remainder of the period during which the employee will be employed;
  • 5. is not on a leave restriction letter or has not been the subject of a leave related action covered by Article 38, or any action covered by Articles 39, and/or 40 within the last twelve (12) months; and
  • 6. has an outstanding advanced annual leave balance of no more than forty (40) hours and is requesting additional advanced annual leave either because the employee has a serious health condition or needs to care for a family member with a serious health condition.
• B. Valid requests for annual leave by other employees will take precedence over requests for advanced annual leave.

Section 7

• A. Subject to its right to assign work, the Employer will authorize leave without pay for Union officers or their designees in each chapter, as appropriate, and to any national officer of the Union for attendance at any Union-sponsored convention, meetings, or other Union business on the following basis: 0-500 bargaining unit employees, four (4); 501-1000 bargaining unit employees, six (6); and 1001 plus bargaining unit employees, eight (8).
• B. In addition to the above, the Employer will grant Union officers and stewards leave to perform Union duties unless work requirements or the work schedule prohibits release. Such officers and stewards may charge such leave, at their option, to earned annual leave or leave without pay.
• C. In instances where employees have received advanced approval for leave, which is later disapproved, resulting in a loss of personal expenses to the employee, the Employer has determined to make every reasonable effort to accomplish the employee's work before rescinding the approval; e.g. details or changes in deadlines, if possible.

Section 8

Notwithstanding the above, nothing contained in this article will restrict the Employer's ability to require the presence of an employee, pursuant to its right to assign work under 5 U.S.C. §7106(a)(2)(B), should the Employer determine that the employee's services are necessary.

Section 9

When the Employer determines that it will charge an employee AWOL, it will notify the employee being charged of its intention to do so in writing as soon as possible, but no later than the end of the pay period or within two (2) workdays if the AWOL charge occurs during the last two (2) days of the pay period (Refer to Exhibit 32-1). Such notice will include the reason for charging AWOL and include the time period(s) in question and will be delivered to the employee in person if the employee is present in the workplace. If the employee is not present and/or is not expected to be present within a reasonable period of time, the notice will be mailed to the employee's home address.

Article 33
Family Leave

Section 1

• A. Consistent with the Family and Medical Leave Act (FMLA), employees are entitled to a total of twelve (12) weeks of unpaid family and medical leave per year. Employees must meet the criteria for leave and comply with the requirements and obligations under the FMLA as referenced in Exhibit 33-1.
• B. An employee who has been approved for FMLA may elect to substitute the following paid leave for any or all of the period of unpaid leave:
  • 1. Accrued or accumulated annual or sick leave consistent with laws and Government-wide regulations governing the granting and use of annual and sick leave;
  • 2. Advanced annual or sick leave granted under Articles 32 and 34;
  • 3. Leave made available to employees under the leave bank and leave transfer provisions of Article 31.
• C. The Employer will not deny an employee's request to substitute paid leave described above for any or all of the period of leave without pay to which the employee is entitled under the FMLA. Additionally, the Employer will not require an employee to substitute paid leave for any or all of the period of leave without pay to which the employee is entitled under FMLA.
• D. Although employees can not substitute compensatory time or credit hours for approved FMLA leave, employees may use approved compensatory time or approved credit hours prior, or subsequent to, FMLA leave.

Section 2

• A. An employee may invoke entitlement to FMLA by notifying the Employer by either written, oral or electronic means that he/she intends to take FMLA leave. The procedures for requesting leave under FMLA and the medical documentation requirements are contained in Exhibit 33-2.
• B. Once an employee submits the completed medical certification signed by a health care provider, the Employer may not request new information from the health care provider, except as permitted by applicable regulations. However, with the employee's permission, the Employer's medical professional may contact the employee's health care provider for purposes of clarifying the medical certification.
• C. Employees using FMLA leave due to a chronic or a long-term condition will not usually be required to obtain a medical certification more than once a year. The Employer may, however, at its own expense, require subsequent medical recertifications on a periodic basis, but not more than once every thirty (30) days.
• D. If the Employer doubts the validity of the certification provided by the employee's health care provider, the Employer may require, at its own expense, that the employee obtain the opinion of a second health care provider designated or approved by the Employer. If the opinion of the second health care provider differs from the original certification, the Employer may require, at its own expense, that the employee obtain the opinion of a third health care provider designated or approved jointly by the Employer and the employee. The opinion of the third health care provider shall be binding on the Employer and the employee.
• E. If the employee is unable to provide the required medical documentation certification before leave begins, or if the Employer questions the validity of the original certification provided by the employee and the medical treatment requires the leave to begin, the Employer will grant provisional leave pending a final written medical certification.
• F. Employees will not be required to reveal the details of their medical condition to their supervisors or managers. Employees may choose to provide any required medical certifications, such as Form WH-380, only to those medical professionals designated by the Employer.

Section 3

• A. Maternity Leave
  • 1. In addition to any leave to which the employee may be entitled under the FMLA, employees may be granted an additional six (6) months of leave for maternity reasons. The Employer will not ordinarily require the employee to return to duty earlier than nine (9) months after childbirth.
  • 2. Pursuant to subsection 3A1 above, for the additional time granted for maternity leave not otherwise covered by the FMLA, the following provisions apply:
    • (a) Subject to the provisions of Article 34, sick leave may be used for the time due to delivery and recuperation.
    • (b) Annual leave may be requested under the provisions of Article 32.
    • (c) Leave without pay, credit hours, or compensatory time may be used for approved maternity leave.
    • (d) The employee may use all, a part, or none of her available annual or sick leave time.
• B. The employee is responsible for notifying the supervisor of her intent to request leave for maternity reasons, including the type of leave, approximate dates, and anticipated duration. This will allow the Employer to prepare for any staffing adjustments necessary to compensate for the employee's absence.

• C. The Employer may request a medical certificate from the employee if there is a question as to the employee's fitness to continue work before delivery or to return to work. The employee may choose to provide this information only to Employer representatives who are medically certified. The Employer agrees to pay for the cost of obtaining such a certificate.

Section 4

The Employer will make a reasonable effort to accommodate a pregnant employee's request for a modification of duties or a temporary assignment when the request is supported by acceptable medical evidence.

Section 5 Paternity Leave

In addition to any entitlement to which a father may have under the FMLA or sick leave, a male employee, who has provided the Employer with reasonable advance notice, may be absent on part-time or full time approved annual leave or approved leave without pay for a reasonable period of time for the purpose of assisting or caring for his minor children or the mother of his newborn child while she is incapacitated for maternity reasons. The Employer will make every reasonable effort to accommodate an employee's request for paternity leave, consistent with workload and staffing needs.

Section 6

Consistent with workload and staffing needs, the Employer will make every reasonable effort to provide part-time or job sharing opportunities for employees who have children under six (6) years of age and pursuant to Article 22, subsection 3B, will provide such opportunities for employees to care for their spouses, children, or parents with serious health conditions.

Article 34
Sick Leave

Section 1

Employees will earn sick leave in accordance with applicable statutes and regulations. Employees may utilize approved sick leave in fifteen (15) minute increments. Employees may not be charged sick leave without consent.

Section 2

• A. Approval of sick leave will be made for employees in accordance with Exhibit 34-1.
• B. Where foreseeable, employees must request advance approval for sick leave. Employees encountering the need for unanticipated sick leave, which could not be requested in advance, must notify their supervisor as soon as possible, but in no event later than two (2) hours after their normal time for reporting to work on the first day of the absence. If the degree of illness or injury prohibits compliance with the two (2) hour limit, the employee will report the absence as soon as possible. If the supervisor is not available during the employee's work hours when the employee calls to request sick leave, the employee must leave a voice message with their telephone number or the employee must e-mail the supervisor and include their telephone number.

Section 3

• A. The Employer may grant sick leave only when the need for sick leave is supported by administratively acceptable evidence. The Employer will consider an employee's self-certification as to the reason for his or her absence as administratively acceptable evidence, and will not require a doctor's certificate, for absences of three (3) consecutive workdays or less, except as provided for in subsection 4A below.
• B. Employees may be required to furnish a medical certificate or other administratively acceptable medical evidence to substantiate a request for approval of sick leave if sick leave exceeds three (3) consecutive workdays.
• C. Medical certificates required under subsection 3B must: (1) include a statement that the employee is under the care of a physician; (2) include a statement that the employee was incapacitated for duty and the days the employee was incapacitated; (3) include information concerning the expected duration of the incapacitation; and (4) must be signed by or contain the stamped signature of the health care provider.
• D. An employee must provide any required medical certification no later than fifteen (15) days after the date the Employer requests it. If it is not practicable under the circumstances for the employee to provide the requested certification within fifteen (15) days despite his or her diligent and good faith efforts, the employee must provide the medical certification within a reasonable period of time under the circumstances involved, but no later than thirty (30) days after the date the Employer requests the certification. An employee who does not provide the required medical certification within the specified time period is not entitled to sick leave.
• E. The Employer has determined that medical certificates will not be required as a matter of policy simply because an employee is absent on specific workdays or specific work times, such as "high volume days," "black out days," or "critical days." The Employer retains the right, however, to request a medical certificate on such days if it has reasonable grounds to believe that the employee is improperly requesting or using sick leave.

Section 4

• A.
  • 1. Where the Employer has reasonable grounds to question whether an employee is properly using sick leave for any period of time (for example, when sick leave is used frequently or in unusual patterns or circumstances), the Employer may inquire further into the matter and ask the employee to explain. Absent a reasonably acceptable explanation, the Employer has determined that it will orally 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 acceptable medical documentation or medical certification for each subsequent absence due to illness or incapacitation for duty, regardless of duration.
  • 2. If reasonable grounds continue to exist for questioning an employee's use of sick leave, the Employer has determined that it may request that the employee provide a medical certification as described in subsection 3C for each absence for which sick leave is requested.
  • 3. The Employer has determined that if reasonable grounds continue to exist for questioning an employee's use of sick leave, the employee may be notified in writing that for a stated period (not to exceed six (6) months) no request for sick leave, or other leave in lieu of sick leave, will be approved unless supported by a medical certificate as described above in subsection 3C which must also include a diagnosis and/or prognosis to the extent not prohibited by law. Any such written notice will describe the frequency, patterns, or circumstances which led to its issuance.
  • 4. Sick leave restriction letters will be based on an employee's absences due to alleged illnesses. Sick leave restriction letters will not be based on an employee's use of approved annual leave (not including annual in lieu of sick leave) or leave approved under the Family Medical Leave Act. Employees on sick leave restriction letters may request annual leave and Family Medical Leave under the applicable Articles of this Agreement.
  • 5. Employees placed on sick leave restriction letters may file a grievance under the streamlined grievance procedures contained in Article 41 of this Agreement.
• B. Employees who, because of illness, are released from duty, and are not subject to the restrictions of subsection 4A above, will not be required to furnish a medical certificate to substantiate sick leave for the day released from duty. Subsequent days of absence will be subject to the provisions of subsections 3A, 3B, 3C, 3D, and 3E above.
• C. Employees who are not subject to the restrictions of subsection 4A above will not be required to furnish a medical certificate on a continuing basis if the employee suffers from a chronic condition, which does not necessarily require medical treatment although absence from work may be necessary and the employee has previously furnished a medical certificate regarding the chronic condition. The Employer may periodically require further medical certification to substantiate an employee's continued use of this provision.

Section 5

• A. An approved absence for the purposes of sick leave will be charged to annual leave if requested by the employee and there is no just cause for the Employer to deny such request.
• B. An employee who becomes ill while on annual leave may have the time of illness changed to sick leave provided that the employee notifies the supervisor on the first day of the illness and otherwise complies with the requirements of Section 4 of this Article.

Section 6

• A. The Employer has determined that an employee will be given advanced sick leave when all of the following conditions are met:
  • 1. the employee is eligible to earn sick leave;
  • 2. the employee's request does not exceed thirty (30) workdays;
  • 3. there is no reason to believe the employee will not return to work after having used the leave;
  • 4. the employee has provided acceptable medical documentation of the need for advanced sick leave;
  • 5. the employee is adopting a child or the employee or family member has a serious health condition. Advanced sick leave is not available for routine medical visits or minor illnesses; and
  • 6. the employee is not subject to the restrictions of subsection 4A above.
• B. Even if all of the conditions above have been met, the Employer may deny advanced sick leave to probationary employees during the first year of their probationary period.
• C. As sick leave is earned by an employee, the earned sick leave will be used to repay any outstanding advanced sick leave balance.

Section 7

• A. For purposes of sick leave, the employee will not be required to reveal any details about the nature of his or her underlying medical condition to the Employer. When specific medical information involving the

• employee's medical condition, including such matters as a diagnosis or prognosis, is required as part of an employee's request for sick leave, the employee may choose to provide that information only to a medical professional designated by the Employer. Moreover, the Employer may not require the employee to sign a release for their medical information or to authorize other than a specific, narrow scope discussion between the employee's and the Employer's medical professionals.
• B. The Employer will treat as confidential any medical information given by an employee in support of a request for sick leave. The Employer may disclose such information subject to its Privacy Act obligations, for work related reasons on a need to know basis only.

Section 8

The Employer will implement this article consistent with 5 CFR Part 630 as appropriate (see Exhibit 34-1).

Section 9

Notwithstanding the above, nothing contained in this article will restrict the Employer's ability to require the presence of an employee, pursuant to its right to assign work under 5 U.S.C. §7106(a)(2)(B), should the Employer determine that the employee's services are necessary.

Article 35
Leaves of Absence

Section 1

• A. The Employer will approve leaves of absence for any employee elected to a national officer position of the Union for the purpose of serving full time in the elected position.
• B. The Employer will approve leaves of absence for one (1) elected local chapter officer in each chapter that represents at least 500 bargaining unit employees.
• C. Leaves of absence granted under subsections 1A and B above will be for a period concurrent with the term of office of the elected official and will be automatically renewed by the Employer upon notification in writing from the elected official who has been reelected and wishes to continue in a leave of absence status.
• D. The Employer will approve leaves of absence for twenty (20) employees Service-wide for the purpose of serving in full time appointive positions for the Union. The term of the leave of absence will be two (2) years. All affected individuals will have their leaves of absence renewed for one (1) additional two (2) year period upon request.
• E. Leaves of absence requested under subsection 1D above will not require the Employer to grant leaves of absence to more than two (2) employees of an office at any one time.

Section 2

• A. The Employer will allow an employee to take leave without pay (LWOP) for up to one (1) year after completion of five (5) years of service to engage in full time job related study, or to engage in any other activities, subject to the work requirements of the Employer.
• B. Employees may take LWOP for up to thirty (30) days for political activities permitted under the Hatch Act Reform Amendments of 1993.

Section 3

• A. All of the leaves of absence granted or approved in accordance with Sections 1 and 2 are subject to the following conditions in addition to such other conditions as may be imposed by law or higher regulations:
  • 1. they will be without pay;
  • 2. access to the Employer's premises by such employees will be in accordance with the terms of this Agreement or IRS regulations, whichever is applicable; and
  • 3. employees are subject to Office of Government Ethics rules and regulations and any other applicable rules or regulations related to ethics and conduct.
• B. In addition to the conditions cited in subsection 3A above, employees taking leaves of absence under Section 2 of this Article are subject to the following additional conditions:
  • 1. the course of study must be approved by the Employer as being designed to improve the job skills of the employee; and
  • 2. if the course of study is one which combines work and study, the work portion is subject to the outside work requirements of the Employer.
• C. Subject to its right to assign employees, the Employer will attempt to accomplish the following to the extent practical:
  • 1. place an employee returning from leave of absence in the position held at the time that the leave of absence began;
  • 2. failing this, an effort will be made to place the employee in a like position in the commuting area; and
  • 3. failing either of the foregoing, the employee will be placed in a like position somewhere in the office.

Section 4

Notwithstanding the above, nothing contained in this Article will restrict the Employer's ability to require the presence of an employee, pursuant to its right to assign work under 5 U.S.C. §7106(a)(2)(B), should the Employer determine that the employee's services are necessary.

Article 36
Administrative Leave

Section 1

For purposes of this Article, administrative leave is approved absence from duty without loss of pay and without charge to leave.

Section 2

• A. The Employer has determined to exercise its discretionary authority to grant excused absence for voting purposes to the extent that such time off does not interfere with agency operations. The granting of excused absences will be done in a fair and equitable manner. As a general rule, when the voting polls are not open at least three (3) hours either before or after an employee's regular hours of work, such employee may be granted an amount of excused leave to vote or register which will permit the employee to report to work three (3) hours after the polls open or leave work three (3) hours before the polls close, whichever requires the lesser amount of time. If a manager refuses to allow an employee administrative time off to vote, the matter will immediately be referred to the SCR or Campus equivalent executive for a determination whether the granting of administrative time off is appropriate. In no circumstances will an employee be approved for more than four (4) hours of administrative leave for voting purposes. This applies to federal and state elections where candidates are running for office, including primaries and caucuses.
• B. The Employer has determined that if an employee's voting place is beyond normal commuting distance and vote by absentee ballot is not permitted, the Employer may grant an excused absence up to eight (8) hours, depending on the distance to be traveled, to allow the employee to make the trip to the voting place to cast a ballot under the circumstances described in subsection 2A above.

Section 3

• A. Whenever it becomes necessary to close an office because of inclement weather or any other emergency situation and to grant administrative leave to those who are excused because of emergency, reasonable efforts will be made to inform all employees by private or public media. An emergency situation is one which is general rather than personal in scope and impact. It may be caused by such developments as heavy snow or severe icing conditions, floods, earthquakes, hurricanes or other natural disasters, air pollution, massive power failure, major fires or serious interruptions to public transportation caused by incidents such as strikes of local transit employees or mass demonstrations.
• B. The Employer has determined that if the emergency conditions described above exist and prevent an employee from arrival at work and the post-of-duty is not closed, the employee will be granted administrative leave for absence from work for a part or all of the employee's workday upon providing the Employer with reasonably acceptable documentation that the employee made reasonable efforts to reach work, but that emergency conditions prevented timely arrival. Factors which shall be considered by the Employer and uniformly applied to all employees within the area affected by the emergency include:
  • 1. the fact that the employee lives beyond the normal commuting area;
  • 2. the mode of transportation normally used by the employee;
  • 3. efforts by the employee to come to work;
  • 4. the success of other employees similarly situated;
  • 5. physical disability of the employee; and
  • 6. local travel restrictions.
• The Employer at its option may waive the above requirement for documentation for absences of four (4) hours or less. This provision does not apply to employees who are away from their post-of-duty for personal reasons and are prevented from returning to work due to emergency conditions. Any grievances filed must include an explanation of why the employee failed to arrive at work.
• C. Employees are obligated to contact their supervisors as early as practicable to explain the circumstances and provide an estimated time of arrival at work.
• D. When an emergency condition forces the closure of an IRS facility and employees thereof are granted administrative leave as a result, an employee of that same facility (a) who is working at home on an approved flexiplace program and (b) who is prevented from accomplishing work because of that same emergency condition (for example, where a power outage forces the closure of an office, and that same power outage prevents a flexiplace employee from completing his or her work assignments at home), that flexiplace employee will be provided the same amount of administrative leave granted employees who were working in the closed facility. A flexiplace employee claiming administrative leave under this provision is responsible for providing appropriate documentation in support of that claim.
• E. If the President, the Office of Personnel Management, or other appropriate authority declares a natural disaster area, employees who are faced with a personal emergency caused by that natural disaster will be eligible for a reasonable amount of administrative leave, based on the facts and circumstances of the personal emergency. An employee requesting administrative leave under this Section may be required to provide an explanation and/or documentation in support of his or her claim.

Section 4

• A. An employee will be granted administrative leave to attend a tax audit which is required as a condition of employment.
• B. An employee will be granted administrative leave to attend a discussion of the employee's own tax affairs with a representative of the Employer.
• C. An employee will be granted administrative leave to attend a tax audit which results from an investigation.

Section 5

• A. The Employer has determined that an internal revenue agent, estate tax examiner, appellate auditor, estate tax attorney, revenue officer, tax auditor, appeals officer, tax law specialist, systems accountant, or operating accountant not admitted to any bar or licensed as a CPA or professional engineer, within the United States or its possessions, will be granted administrative leave four (4) times to the extent necessary for the purpose of taking bar, CPA, or engineer examinations. Such administrative leave grants will be extended to include the time for necessary oral interviews.
• B. The Employer has determined that it will grant additional administrative leave for this purpose to the above described employees who have shown reasonable progress toward achieving success in passing the applicable examinations.

Section 6

The Employer has determined that an emergency absence of less than one (1) hour will be excused when the affected employee provides the Employer with a reasonably acceptable explanation for the absence.

Section 7

If emergency repairs become necessary while an employee in official travel status is using a privately owned vehicle, the employee will be continued in official pay status, contingent upon the presentation to the supervisor of a reasonable, acceptable explanation/documentation relating to the emergency. In such situations, the employee will (within the hour if practicable) provide the supervisor with an estimate of the situation and obtain appropriate instructions.

Section 8

• A. Military leave shall be credited to a full time employee on the basis of an eight (8) hour workday. The minimum charge to leave is one (1) hour as required by law. An employee may be charged military leave only for hours that the employee would otherwise have worked and received pay. Employees who request military leave for inactive duty training (which is generally two (2), four (4), or six (6) hours in length) will now be charged only the amount of military leave necessary to cover the period of training and necessary travel. Members of the Reserves and National Guard will no longer be charged military leave for weekends and holidays that occur within the period of military service.
  • 1. 5 U.S.C. §6323(a) provides fifteen (15) days per fiscal year for active duty, active duty training, and inactive duty training. An employee can carry over a maximum of fifteen (15) days into the next fiscal year.
  • 2. Inactive Duty Training (IDT) is authorized training performed by members of a Reserve component not on active duty and performed in connection with the prescribed activities of the Reserve component. It consists of regularly scheduled unit training periods, additional training periods and equivalent training.
  • 3. 5 U.S.C. §6323(b) provides twenty-two (22) workdays per calendar year for emergency duty as ordered by the President or a State Governor. This leave is provided for employees who perform military duties in support of civil authorities in the protection of life and property.
  • 4. 5 U.S.C. §6323(c) provides unlimited military leave to members of the National Guard of the District of Columbia for certain types of duty ordered or authorized under Title 39 of the District of Columbia Code.
  • 5. 5 U.S.C. §6323(d) provides that Reserve and National Guard Technicians only are entitled to forty-four (44) workdays of military leave for duties overseas under certain conditions.
• B. Approval of military leave provided in the foregoing shall be based on a copy of the orders directing the employee to active duty and a copy of the certificate on completion of such duty.
• C. Military leave shall be without loss of pay.
• D. The Employer will comply with the provisions of the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. §4301, et. al., which applies to persons who perform duty, voluntarily or involuntarily, in the uniformed services. The USERRA applies to persons who perform duty, voluntarily or involuntarily, in the uniformed services which includes the Army, Air Force, Navy, Marine Corps, Coast Guard, and Public Health Service Commissioned Corps, as well as the reserve components of each of these services. Uniformed service includes active duty, active duty for training, inactive duty training (such as drills), initial active duty training, and funeral honors duty performed by National Guard and reserve members as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty.

• E. Service members returning from a period of service in the uniformed services must be reemployed by the "preservice" employer if they meet all five (5) eligibility criteria:
  • 1. the person must have held a civilian job;
  • 2. the person must have given notice to the Employer that he or she was leaving the job for service in the uniformed services unless giving notice is precluded by military necessity or otherwise impossible or unreasonable;
  • 3. the period of service must not have exceeded five (5) years;
  • 4. the person must not have been released from service under dishonorable or other punitive conditions; and
  • 5. the person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment.

Section 9

The Employer has determined that an employee who donates blood is entitled to receive four (4) hours of administrative leave immediately following the donation for recuperative purposes. However, subject to supervisory approval, the recuperative time may be taken later in the day that the blood is donated rather than immediately following the donation. At the employee's option, he or she may take the recuperative time at home. In addition, administrative leave will be granted for reasonable travel to and from the donation site and to actually give blood. If necessary, additional recuperative time may be requested. However, the total administrative leave will be limited to the remaining scheduled hours of duty on the day of the donation. An employee who is not accepted for donating blood is only entitled to the time necessary to travel to and from the local donation site and the time needed to make the determination.

Section 10

Notwithstanding the above, nothing contained in this Article will restrict the Employer's ability to require the presence of an employee, pursuant to its right to assign work under 5 U.S.C. §7106(a)(2)(B), should the Employer determine that the employees' services are necessary.

Section 11

• A. If workload permits, employees who are rated fully successful and above will be granted up to eight (8) hours of excused absence (administrative leave) per year to volunteer their time to legitimate public service organizations. Time spent in such activities outside an employee's regular working hours is not hours of work. Administrative leave for volunteer activities will be limited to those situations in which the employee's absence, as determined by the Employer, is not specifically prohibited by law and meets at least one (1) of the following criteria:
  • 1. the absence is directly related to the Service's mission;
  • 2. the absence is officially sponsored or sanctioned by the Employer;
  • 3. the absence will clearly enhance the professional development or skills of the employee in his or her current position; or
  • 4. the Employer determines that the activity is in the best interests of the Service.
• B. If the supervisor determines that workload permits, employee requests for excused absence to perform voluntary activities will be submitted to a second level manager, as determined by each Business Unit, for approval. Denials of such requests are not grievable.

Section 12

Subject to workload considerations the Employer may grant an employee up to a total of four (4) hours excused absence per calendar year for the purposes of attending a health benefits fair, reviewing health benefits information and materials, receiving financial counseling, and seeking supplemental retirement counseling. Except for excused absence for retirement planning, as provided for in Article 21, no other administrative time shall be authorized for general benefit counseling.

Section 13

• A. The Employer will periodically inform employees of the availability of administrative leave for the purposes of bone marrow or organ donations.
• B. The Employer has determined that an employee may utilize up to seven (7) days of paid leave each calendar year to serve as a bone marrow donor. An employee may also utilize up to thirty (30) days of paid leave each calendar year to serve as an organ donor. Paid leave for both bone marrow and organ donations shall be charged to administrative leave at the election of the employee and are in addition to annual and sick leave.

Article 37
Probationary Employees

Section 1

Probationary employees will be advised of their progress at least ninety (90) days prior to the end of their probationary period with the Service.

Section 2

• A. The appropriate Chapter President will be notified at least twenty-four (24) hours prior to a meeting scheduled for the purpose of removing a probationary employee of the time and place of the meeting. Prior to the beginning of the meeting, and if the employee

• does not object, the Union will be afforded up to fifteen (15) minutes to speak in private with the employee.
• B. A letter of termination will advise probationary employees of their statutory appeal rights. The letter of termination will also advise the employee of the following:
  • "In addition to any right you may have to appeal to the Merit Systems Protection Board (MSPB) or the Equal Employment Opportunity Commission (EEOC), you may also have the right to file charges or complaints with the Federal Labor Relations Authority (FLRA), Office of Special Counsel (OSC), the Office of Personnel Management (OPM) or other Federal agencies if you believe your rights have been violated and your claims are within their jurisdiction."

Section 3

• A. All provisions of this Agreement apply to probationary employees, except those provisions which are inconsistent with law, rule, or regulation. The Union may represent probationary employees in connection with any matter consistent with law or regulation and this Agreement, e.g.,
  • 1. the denial of leave, including the Family and Medical Leave Act (FMLA);
  • 2. a request for an Alternate Work Schedule (AWS);
  • 3. an investigation conducted by the Treasury Inspector General for Tax Administration (TIGTA);
  • 4. an improper reassignment or error in the merit promotion process;
  • 5. a negative recordation used in a performance appraisal;
  • 6. a dispute over a performance appraisal or rating of record; and
  • 7. employment related claims that may be raised to outside Government agencies.

Article 38
Disciplinary Actions

Section 1

• A. A disciplinary action for purposes of this article is defined as an admonishment, a written reprimand, or a suspension of fourteen (14) days or less.
• B. This Article applies to bargaining unit employees who have completed their probationary or trial period except to the extent prohibited by law.
• C. No bargaining unit employee will be the subject of a disciplinary action except for such cause as will promote the efficiency of the Service.
• D. The Union shall be given the opportunity to be represented at any examination of an employee in the unit by a representative of the Agency in connection with an investigation if:
  • 1. the employee reasonably believes that the examination may result in disciplinary action against the employee; and
  • 2. the employee requests representation.
• E. A meeting between an employee and the supervisor, acting supervisor or other line management official during which the principal topic of discussion is discipline or potential discipline will entitle the employee involved to request to be accompanied by the Union steward during such meeting. If such a request is made, the supervisor, acting supervisor or other line management official will honor the request. Any meeting held for the purpose of issuing a disciplinary or proposed disciplinary letter to a bargaining unit employee will not be investigative in nature.
• F. In deciding what disciplinary action may be appropriate, the Employer will give due consideration to the relevance of any mitigating and/or aggravating circumstances. The following factors, included herein for purposes of illustration, are neither meant to be exhaustive nor intended to be applied mechanically, but rather to outline the tolerable limits of reasonableness:
  • 1. the nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical and inadvertent, or was committed maliciously or for gain, or was frequently repeated;
  • 2. the employee's job level and type of employment, including supervisor or fiduciary role, contacts with the public, and prominence of the position;
  • 3. the employee's past disciplinary record;
  • 4. the employee's past work record; including length of service, performance on the job, ability to get along with fellow workers, and dependability;
  • 5. the effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon the Employer's confidence in the employee's ability to perform assigned duties;
  • 6. consistency of the penalty with those imposed upon other employees for the same or similar offenses;
  • 7. the notoriety of the offense or its impact upon the reputation of the Employer;
  • 8. the clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;
  • 9. potential for the employee's rehabilitation;

• • 10. mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and
  • 11. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
• G. The Employer recognizes the importance of completing an investigation of an employee in as timely a manner as is practicable. Further, discipline, when proposed by the Employer, will also be administered as timely as possible; however, when an employee has been advised that he or she is/was the subject of an investigation, and a determination is made not to propose a disciplinary action, the designated proposing official will issue the appropriate letter (i.e., clearance or closed without action) to the employee within a timely fashion, normally within thirty (30) days of when the case involving the employee is closed. The letter will not be placed in the employee's Official Personnel Folder (OPF) unless requested by the employee in writing.

Section 2 Alternative Discipline

• A. The Employer and the Union encourage the use of alternative approaches to traditional disciplinary actions. The goal of such an approach is to positively change an employee's conduct by offering an alternative means of correcting such conduct. The Employer will publicize to supervisors the benefits of alternative discipline and will include such information on alternative discipline in the Guide to Penalty Determinations. The Employer will recommend that traditional discipline and alternative discipline should not normally be combined.
• B. Alternative discipline methods and mechanisms shall be implemented consistent with the following objectives:
  • 1. improving communications and interpersonal working relationships between supervisors and employees;
  • 2. correcting behavioral problems;
  • 3. reducing the costs and delays inherent in traditional disciplinary actions; and
  • 4. decreasing the contentiousness between the parties at the local level.
• C. Alternative discipline is offered solely by agreement of the parties. Under no circumstances is alternative discipline required to be used but, if used, the provisions of this Agreement must be met.
• D. Alternative discipline is an option when the disciplinary action would otherwise involve an official reprimand or a suspension of fourteen (14) days or less.
• E. Alternative discipline discussions must occur prior to entering into the "traditional" disciplinary process.
• F.
  • 1. Prior to the issuance of a letter of reprimand or a proposal to suspend, the Employer will inform the employee that "traditional" discipline is being contemplated and that the employee may request consideration of an alternative form of discipline. The employee will have five (5) workdays to request consideration of the alternative discipline option. Should the employee request consideration of alternative discipline, meeting(s) will be held and concluded within five (5) workdays of the request. At the conclusion of the meeting(s):
    • (a) an agreement on alternative discipline must be reached; or
    • (b) the "traditional" disciplinary process will begin.
  • 2. If such meetings are held, they will include the proposing official or designee, other Employer representatives deemed necessary, the employee, and the employee's representative. Should alternative discipline meetings prove to be unproductive, either party may elect to terminate them prior to the five (5) workday time frame and proceed with the "traditional" discipline. If an alternative discipline agreement is reached, it will be reduced to writing consistent with this Agreement. Should an alternative discipline agreement not be reached, the employee will be afforded his or her rights as described in this Article.
• G. The parties may agree to extend the time frames in subsection 2F.
• H. In any alternative discipline agreement, it is understood that:
  • 1. should future misconduct occur, the alternative discipline agreement will constitute a prior disciplinary action that may be considered in future disciplinary actions;
  • 2. the alternative discipline agreement will be maintained by the Employer in a manner which is consistent with the retention requirements of the underlying action (that is, for a period of two (2) years when the alternative discipline agreement takes the place of a reprimand and indefinitely when the alternative discipline agreement takes the place of a suspension);
  • 3. the alternative discipline agreement will not be placed in the employee's Official Personnel Folder (OPF);
  • 4. the alternative discipline agreement does not preclude the Employer from taking appropriate action regarding any other misconduct not covered by the alternative discipline agreement;

• • 5. the alternative discipline agreement is not precedential;
  • 6. should the employee violate the alternative discipline agreement, the employee will be notified in writing of the violation and that the penalty as outlined in the alternative discipline agreement will be effected immediately;
  • 7. should the employee dispute whether a violation of the alternative discipline agreement occurred, the employee may file a grievance within five (5) workdays of receipt of written notification on only whether a violation of the alternative discipline agreement occurred;
  • 8. should the employee grieve whether the violation occurred, imposition of the penalty will be stayed pending resolution of the grievance;
  • 9. if the grievance is not resolved prior to arbitration, the grievance must be submitted to the expedited arbitration process, consistent with subsection 7D below, where an arbitrator's review is limited to the dispute of whether or not there was a violation of the alternative discipline agreement; and
  • 10. the alternative discipline agreement must be signed by the employee, the employee's representative, and an Employer representative with the delegated authority to take the "traditional" discipline which was replaced by the alternative discipline.
• I. Any alternative discipline agreement must include the following:
  • 1. a detailed description of the alternative discipline which has been agreed to;
  • 2. a statement of the penalty for which the alternative discipline agreement is a substitute;
  • 3. a statement of the misconduct;
  • 4. a statement that the employee admits to engaging in the misconduct; and
  • 5. a statement that the employee and the Union waive all oral and/or written reply, grievance, appeal and complaint rights in any forum.

Section 3

• A. An employee will, in any disciplinary action and upon request, be furnished a copy of that portion of all written documents which contain evidence relied on by the Employer which form the basis for the reasons and specifications. In addition, the employee and/or NTEU may request other information in response to the proposed action, consistent with appropriate Statutes (e.g., 5 U.S.C. §7114(b)(4), 5 U.S.C. §552, and 5 U.S.C. §552a.
• B. Upon request, an employee, or the Union when designated by the employee, will be furnished all written documents pertaining to the investigation of the employee that were available to the proposing official at the time the notice of proposed action was issued to the employee. The parties will issue joint guidance to facilitate the timely and accurate release of information, and meet on a periodic basis to assess the effectiveness of the process and ways in which it can be improved.
• C. If probable cause exists and is demonstrated to the arbitrator by the Union on appeal that information provided for in an investigative report relating to the specifications has not been furnished by the Employer, upon request of the arbitrator, the report will be furnished for an "in camera" inspection to be made in conformity with the Privacy Act (5 U.S.C. §552a). Material determined by the arbitrator to be favorable under the criteria of subsection 3B, and not previously furnished to the Union, will be furnished to the Union.
• D. Nothing in this section is to be construed as a waiver of the employee's or Union's right to request additional information under other authorities, such as Freedom of Information Act, Privacy Act, or Civil Service Reform Act.

Section 4

Matters which may otherwise be appealable to arbitration may not be processed under this article if the matter is pending before a Federal court or the employee is under arrest or indictment.

Section 5

• A. When the Employer proposes to suspend an employee for fourteen (14) days or less, the following procedures will apply:
  • 1. the Employer will provide the affected employee with fifteen (15) days advance written notification of the proposed suspension;
  • 2. The employee has the right, but is not obliged, to make an oral/written reply on the reasons and specifications prior to a final decision, provided that the oral or written reply is received by the Employer within a reasonable period of time after the employee's receipt of the letter of proposed action. Any request for an oral reply must be made within seven (7) days of the employee's receipt of the letter of proposed action. The Employer agrees that when a record of an oral/written reply is made, it will always contain as an attachment, all documents submitted by the employee and his or her representative. Any documents not submitted at the oral reply, but received within five (5) workdays of the date of the oral reply, where practicable, will be included in the reply record; and
  • 3. the Employer will issue a final decision after receipt of the written and/or oral reply, or the termination

• • of the fifteen (15) day notice period. This letter will state which reasons and specifications are sustained and will address factual disputes, if any, raised in the employee's reply by stating the reasons why each factual dispute was rejected.

Section 6

• A. In cases where a suspension is proposed for reasons of off-duty misconduct, the Employer's written notification provided for in Section 5 above, will also contain a statement of the nexus between the off-duty misconduct and the efficiency of the Service. The notification will describe why and how there is a connection between the specific off-duty misconduct and the efficiency of the Service. (For example, how would drunk driving that led to an arrest interfere with the efficiency of the Service so as to warrant discipline?)
• B. If the Employer elects to change or modify the stated nexus prior to issuing a final decision letter, the employee will be informed of such changes or modifications in writing in accordance with Section 1 of Article 52.
• C. The employee will have the opportunity to make an oral and/or written answer to the new statement of nexus. The parties intend that an oral response should be made only in exceptional cases.
  • 1. Within five (5) workdays of the employee's receipt of the new nexus statement, the Employer shall be notified of the employee's intention to submit an oral and/or written answer. The oral answer must be made within ten (10) days of the employee's receipt of the new nexus statement, absent mutual consent. The written answer must be served on the Employer on or before the tenth (10th) workday following receipt by the employee of the new nexus statement, absent mutual consent. "Served" means mailing by certified mail or hand delivery to the appropriate Employer office.
  • 2. Where an oral answer is submitted, the Employer shall make a written summary of the answer. The written summary shall be sent to the employee's representative. The employee's representative shall have three (3) workdays from receipt of the written summary to send corrections of the summary to the Employer. If the Employer sent the summary to the representative by express mail or hand delivery, the representative will return the corrections by express mail or hand delivery.
• D. After issuance of the decision letter, the Employer may amend or change its nexus statement under the following circumstances:
  • 1. a new nexus statement is based on newly discovered evidence which was not discoverable earlier with the exercise of due diligence; or
  • 2. a change occurs in applicable case law or statute.
• E. If the Employer amends the nexus statement due to the discovery of new evidence as described in subsection 6D1, the Employer will expeditiously notify the employee's representative (or the employee, if unrepresented) of its intent to rely on a new nexus theory because of the newly discovered evidence. If it becomes necessary to delay or cancel an arbitration hearing because of the need of the Union to respond at hearing to this new nexus theory, and if the Employer's notification to the Union of the new nexus theory occurs within seven (7) days of a scheduled hearing, the Employer and the Union shall equally share the expenses of a cancellation fee.
• F. Nothing in this section shall preclude the Employer from responding to or rebutting any evidence, arguments, or defenses raised by or on behalf of the employee.
• G. Letters of official reprimand which are based on reasons of off-duty misconduct will also state a nexus between such misconduct and the efficiency of the Service.

Section 7

• A. If the Employer's final decision is that an employee will be suspended for a period of not more than fourteen (14) days, the suspension will take effect as soon as possible, but no sooner than seven (7) workdays after the employee's receipt of the final decision.
• B. Suspensions of between four (4) and fourteen (14) days will be stayed pending an arbitration decision provided that:
  • 1. for suspensions of four (4) to fourteen (14) days, a grievance is filed within seven (7) workdays of the final decision on the action, and arbitration is invoked within seven (7) workdays of the last step grievance decision; and
  • 2. the arbitrator's decision is issued within 180 days of the invocation.
• C. Suspensions of fourteen (14) days or less will be grieved to the last step of the grievance procedure. Unless a stay is requested pursuant to subsection 7B1 above, the employee has fifteen (15) workdays to file a grievance. The Union may appeal such grievances to expedited arbitration.
• D. The Union must notify the IRS of any appeal to arbitration filed by the Union. Such notice must be sent to an e-mail address established by the Employer. The e-mail address will be provided to the Union at the national level when initially established and whenever changed in future. The Union must invoke arbitration within thirty (30) days of the date it receives the final

• decision issued by the Employer. If a final decision was not timely rendered, the Union may invoke arbitration at any time after the date on which the decision was due and up until thirty (30) days after the decision is eventually provided.
• E. If timely notice of appeal to arbitration is not received by the appropriate deciding official, the decision of the Employer may not be appealed in any other manner under the terms of this Agreement.
• F. The standard of proof will be substantial evidence for arbitration provided for in this Article.

Section 8

• A.
  • 1. To the extent not prohibited by law, the Employer will provide the Union with copies of all admonishments, written reprimands, and proposal and decision letters for suspensions of fourteen (14) days or less simultaneously with their issuance to employees. One (1) copy shall be provided to the chapter office that represents the affected employee, and to the servicing NTEU National Field Office. It shall be the responsibility of both the local Union office and the NTEU National Field Office to maintain this information for their use in grievances and arbitrations and all other representative matters.
  • 2. The letters referenced in this section and the case data provided in subsection 8B will be coded with the same case number in order for the Union to cross-reference the data. The Employer will sanitize documents in compliance with applicable laws, rules and regulations, and not over-sanitize so as to cause the information to be unusable.
  • 3. The Employer agrees that it will not effect discipline until it has complied with subsections 3A and 3B of the Article.
• B. Beginning with the effective date of this Agreement, the Employer will, to the extent not prohibited by law, provide National NTEU with a quarterly report showing disciplinary, adverse, and unacceptable performance actions. This data file will include all information from ALERTS not prohibited from disclosure in accordance with governing statutes. This data file will be forwarded electronically and the format will be determined after discussions between NTEU and the Employer.
• C. Information provided by the Employer pursuant to this section need not be provided again to any Union chapter, office, or representative pursuant to any statutory or contractual request.

Section 9

At the time the Employer issues its proposal letter and its decision letter to an employee, it shall include a letter written by the Union which outlines the employee's right to representation and his or her appeal rights. Failure to include such a letter shall be grievable, but shall not constitute a basis for overturning the disciplinary action.

Article 39
Adverse Actions

Section 1

• A. An adverse action, for purposes of this Article, is defined as a removal; a suspension for more than fourteen (14) days; an indefinite suspension; a reduction in grade; a reduction in pay; and a furlough of thirty (30) days or less of a full time employee. This article does not apply to a reduction in grade or a removal based on unacceptable performance as defined in 5 U.S.C. §4303.
• B. This Article only applies to bargaining unit employees who have completed their probationary period or trial period, except to the extent prohibited by law.
• C. No bargaining unit employee will be subject to an adverse action except for such cause as will promote the efficiency of the Service.
• D. The Union shall be given the opportunity to be represented at any examination of an employee in the unit by a representative of the Agency in connection with an investigation if:
  • 1. the employee reasonably believes that the examination may result in disciplinary action against the employee; and
  • 2. the employee requests representation.
• E. A meeting between an employee and the supervisor, acting supervisor or other line management official during which the principal topic of discussion is an adverse action or proposed adverse action will entitle the employee involved to request to be accompanied by the Union steward during such meeting. If such a request is made, the supervisor, acting supervisor or other line management official will honor the request. Any meeting held for the purpose of issuing an adverse action or proposed adverse action letter to a bargaining unit employee will not be investigative in nature.
• F. In deciding what adverse action may be appropriate, the Employer will give due consideration to the relevance of any mitigating and/or aggravating circumstances. The following factors, included herein for purposes of illustration, are neither meant to be exhaustive nor intended to be applied mechanically, but rather to outline the tolerable limits of reasonableness:
  • 1. the nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical and inadvertent, or was

• • committed maliciously or for gain, or was frequently repeated;
  • 2. the employee's job level and type of employment including supervisorial or fiduciary role, contacts with the public, and prominence of the position;
  • 3. the employee's past disciplinary record;
  • 4. the employee's past work record; including length of service, performance on the job, ability to get along with fellow workers, and dependability;
  • 5. the effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon the Employer's confidence in the employee's ability to perform assigned duties;
  • 6. consistency of the penalty with those imposed upon other employees for the same or similar offenses;
  • 7. the notoriety of the offense or its impact upon the reputation of the Employer;
  • 8. the clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;
  • 9. potential for the employee's rehabilitation;
  • 10. mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and
  • 11. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
• G. The Employer has determined that the principal of progressive discipline should be considered unless the offense warrants a severe penalty, such as removal.
• H. The Employer recognizes the importance of completing an investigation of an employee in as timely a manner as is practicable. Further, adverse actions, when proposed by the Employer, will also be administered as timely as possible; however, when an employee has been advised that he or she is/was the subject of an investigation, and a determination is made not to propose a disciplinary action, the designated proposing official will issue the appropriate letter (i.e., clearance or closed without action) to the employee within a timely fashion, i.e., normally within thirty (30) days of when the case involving the employee is closed. The letter will not be placed in the employee's Official Personnel Folder (OPF) unless requested by the employee in writing.

Section 2

• A. In all cases of proposed adverse action, the employee will be given written notice stating the specific reasons for the proposed action thirty (30) days in advance of the action, except as provided in subsection 2C below.
• B. In all cases of proposed adverse action, except as provided in subsection 2C below, the employee will be given the opportunity but will not be obliged to respond orally and/or in writing to the reasons and specifications prior to a decision on them provided that the oral and/or written reply is received by the Employer within a reasonable period of time after the employee's receipt of the letter of proposed action. Any request for an oral reply must be made within seven (7) days of the employee's receipt of the letter of proposed action. The Employer agrees that when a record of an oral/written reply is made, it will always contain as an attachment, all documents submitted by the employee and his or her representative. Any documents not submitted at the oral reply, but received within five (5) workdays of the date of the oral reply, where practicable, will be included in the reply record.
• C. In cases of proposed removal or indefinite suspension where the Employer has reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, the employee will be given written notice stating the specific reason(s) for the proposed action seven (7) days in advance of the action. The employee will be given the opportunity, but will not be obliged to respond orally and/or in writing to the proposed action prior to a decision being provided, however, that the employee's reply or replies must be received by the Employer within seven (7) days of receipt by the employee of the advance written notice.
• D. If the employee elects to make an oral reply, the Employer will prepare a verbatim transcript of the oral reply and will provide a copy to the employee or designated Union representative upon request.

Section 3

• A. In cases where an adverse action is proposed for reasons of off-duty misconduct, the Employer's written notification provided for in subsection 2A above, will also contain a statement of the nexus between the off-duty misconduct and the efficiency of the Service. The notification will describe why and how there is a connection between the specific off-duty misconduct and the efficiency of the Service. (For example, how would drunk driving that led to an arrest interfere with the efficiency of the Service so as to warrant an adverse action?)
• B. If the Employer elects to change or modify the stated nexus prior to issuing a final decision letter, the employee will be informed of such changes or modifications in writing in accordance with Section 1 of Article 52.

• C. The employee will have the opportunity to make an oral and/or written answer to the new statement of nexus. The parties intend that an oral response should be made only in exceptional cases.
  • 1. Within five (5) workdays of the employee's receipt of the new nexus statement, the Employer shall be notified of the employee's intention to submit an oral and/or written answer. The oral answer must be made within ten (10) days of the employee's receipt of the new nexus statement, absent mutual consent. The written answer must be served on the Employer on or before the tenth (10th) workday following receipt by the employee of the new nexus statement, absent mutual consent. "Served" means mailing by certified mail or hand delivery to the appropriate Employer office.
  • 2. Where an oral answer is submitted, the Employer shall make a written summary of the answer. The written summary shall be sent to the employee's representative. The employee's representative shall have three (3) workdays from receipt of the written summary to send corrections of the summary to the Employer. If the Employer sent the summary to the representative by express mail or hand delivery, the representative will return the corrections by express mail or hand delivery.
• D. After the issuance of the decision letter, the Employer may amend or change its nexus statement under the following circumstances:
  • 1. a new nexus statement is based on newly discovered evidence which was not discoverable earlier with the exercise of due diligence; or
  • 2. a change occurs in applicable case law or statute.
• E. If the Employer amends the nexus statement due to discovery of new evidence, it will expeditiously notify the employee's representative (or the employee if unrepresented) of its intent to rely on a new nexus theory because of newly discovered evidence. If it becomes necessary to delay or cancel an arbitration hearing because of the need of the Union to respond at hearing to this new nexus theory, and if the Employer's notification to the Union of the new nexus theory occurs within seven (7) days of a scheduled hearing, the Employer and the Union shall equally share the expenses of a cancellation fee.
• F. Nothing in this section shall preclude the Employer from responding to or rebutting any evidence, argument, or defenses raised by or on behalf of the employee.

Section 4

An official who sustains the proposed reasons against an employee in an adverse action will set forth findings with respect to each reason and specification against the employee in the notice of decision. Such notice will also address factual disputes, if any, raised in the employee's reply by stating the reasons why each factual dispute was rejected.

Section 5

• A. An employee will, in any adverse action and upon request, be furnished a copy of that portion of all written documents which contain evidence relied on by the Employer which form the basis for the reasons and specifications. In addition, the employee and/or NTEU may request other information in response to the proposed action, consistent with appropriate Statutes (e.g., 5 U.S.C. §7114(b)(4), 5 U.S.C. §552, and 5 U.S.C. §552a.
• B. Upon request, an employee, or the Union when designated by the employee, will be furnished all written documents pertaining to the investigation of the employee that were available to the proposing official at the time the notice of proposed action was issued to the employee. The parties will issue joint guidance to facilitate the timely and accurate release of information, and meet on a periodic basis to assess the effectiveness of the process and ways in which it can be improved.
• C. If probable cause exists and is demonstrated to the arbitrator by the Union on appeal that information provided for in subsection 5B above has not been furnished by the Employer, upon request by the arbitrator the report will be furnished for an "in-camera" inspection to be made in conformity with the Privacy Act (5 U.S.C. §552a). Material determined by the arbitrator to be favorable under the criteria of subsection 5B and not previously furnished to the Union will be furnished to the Union.
• D. Nothing in this section is to be construed as a waiver of the employee's or Union's right to request additional information under other authorities such as the Freedom of Information Act, Privacy Act, or Civil Service Reform Act.

Section 6

• A. If the Employer's final decision is to effect an adverse action against a bargaining unit employee, the employee may appeal the decision to the Merit Systems Protection Board (MSPB) in accordance with applicable law, or with the consent of the Union to binding arbitration. Under no condition may an employee appeal an adverse action to both MSPB and arbitration.
• B. The Union must notify the IRS of any appeal to arbitration filed by the Union. Such notice must be sent to an e-mail address established by the Employer. The e-mail address will be provided to the Union at the national level when initially established and whenever changed in future. The Union must invoke arbitration within thirty (30) days of the date the employee receives the final decision issued by the Employer.

• C. If timely notice of appeal is not received, the action may not be appealed to the arbitration procedure.
• D. The standard of proof in any arbitration over this matter will be the preponderance of evidence.
• E. In order to expedite resolution of removals, suspensions, and reductions in grade of three (3) grades or more covered by this Article, the parties agree to the following procedures for arbitration of such actions:
  • 1. the parties shall establish a hearing date so that the hearing will be conducted within 120 days of the action's effective date. If the parties are unable to agree to such a date, the assigned arbitrator shall be empowered and instructed upon the motion of either party to establish a date and conduct the hearing within the time set forth above. Once established, a hearing date may be changed only by the parties' mutual agreement, and the arbitrator shall permit either party to proceed ex parte in the event the other party fails to present its case on the established hearing date;
  • 2. if the assigned arbitrator is unable to provide a hearing date within the time set forth above, a new arbitrator will be promptly assigned; and
  • 3. after conducting the hearing, the assigned arbitrator shall be responsible for scheduling closure of the record and issuing a decision not later than sixty (60) days after the hearing is concluded.

Section 7

• A.
  • 1. To the extent not prohibited by law, the Employer will provide the Union with unsanitized copies of adverse action proposal and decision letters, simultaneously with their issuance to employees. One (1) copy shall be provided to the chapter office that represents the affected employee and one (1) copy shall be provided to the servicing NTEU National Field Office. It shall be the responsibility of both the local Union office and the NTEU National Field Office to maintain this information for their use in grievances and arbitrations and all other representative matters.
  • 2. The letters referenced in this section and the case data provided in subsection 7B will be coded with the same case number in order for the Union to cross-reference the data. The Employer will sanitize documents in compliance with applicable laws, rules and regulations, and not over-sanitize so as to cause the information to be unusable.
  • 3. The Employer agrees that it will not effect discipline until it has complied with subsection 5A of this Article.
• B. Beginning with the effective date of this Agreement, the Employer will, to the extent not prohibited by law, provide National NTEU with a quarterly report showing disciplinary, adverse, and unacceptable performance actions. This data file will include all information from ALERTS not prohibited from disclosure in accordance with governing statutes. This data file will be forwarded electronically and the format will be determined after discussions between NTEU and the Employer.
• C. Information provided by the Employer pursuant to this section need not be provided again to any NTEU chapter, office, or representative pursuant to any statutory or contractual request.

Section 8

At the time the Employer issues its proposal letter and its decision letter to an employee, it shall include a letter written by the Union which outlines the employee's right to representation, and his or her appeal rights. Failure to include such a letter shall be grievable, but shall not constitute a basis for overturning the adverse action.

Section 9

The Employer has determined that the Guide for Penalty Determinations is a guide, and that supervisors are responsible for determining the type of penalty to initiate for alleged conduct violations.

Article 40
Unacceptable Performance

Section 1

• A. An action based on unacceptable performance, for the purpose of this Article, is defined as the reduction in grade or removal of an employee whose performance fails to meet established performance standards in one or more critical job elements of the employee's position.
• B. This Article applies only to bargaining unit employees who have completed their probationary or trial period, except to the extent prohibited by law.
• C. No bargaining unit employee will be the subject of an action based on unacceptable performance unless that employee's performance fails to meet established performance standards in one or more critical job elements of the employee's position, after having been afforded an adequate opportunity to demonstrate acceptable performance.
  • 1. If at any time during the performance appraisal cycle that an employee's performance is determined to be unacceptable in one or more critical job elements, the Employer will:

• • • (a) notify the employee of the critical job element(s) for which performance is unacceptable; and
    • (b) issue a written plan to the employee, including but not limited to suggestions as to how the employee can improve his/her performance, the type of assistance the Employer will provide, and instructions on ways the employee can be expected to raise his/her performance to an acceptable level.
  • 2. To avoid a reduction in grade or removal, the employee must meet and sustain at an acceptable level, the performance standard(s) for which the critical job element(s) at issue.
• D. A meeting between an employee and the supervisor or other line management official during which the principal topic of discussion is action or potential action based on unacceptable performance will entitle the employee involved to request to be accompanied by the Union steward during such meeting. If such a request is made, the supervisor or other line management official will honor the request.
• E. Any action based on unacceptable performance will be fair, equitable, and administered as timely as possible.

Section 2

• A. Prior to issuing a notice of proposed action based on unacceptable performance, the Employer will issue a letter to the employee which contains the following:
  • 1. an identification of the critical job elements and performance standards for which performance is unacceptable;
  • 2. advice as to what the employee must do to bring performance up to an acceptable level;
  • 3. a statement that the employee has a reasonable period of time (specified in days) but never less than sixty (60) days in which to bring performance up to an acceptable level; and
  • 4. a description of what the Employer will do to assist the employee to improve the allegedly unacceptable performance during the opportunity period.
• B. A grievance may not be filed on either the substance or procedural aspects of this notice until a final decision is issued.

Section 3

• A. In all cases of proposed action based on unacceptable performance, the employee will be given written notice of the reasons and specifications of unacceptable performance on which the proposed action is based thirty (30) days in advance of the action.
• B. The advance written notice proposing either to remove or downgrade an employee for unacceptable performance will include:
  • 1. specific instances of unacceptable performance by the employee on which the proposed action is based;
  • 2. the critical job element(s) of the employee's position involved in each specification of unacceptable performance;
  • 3. the performance standard(s) of the employee's position involved in each specification of unacceptable performance;
  • 4. a statement of the employee's right to be represented by an attorney or representative;
  • 5. a statement of the employee's right to answer orally and/or in writing; and
  • 6. a statement of the employee's right to review the material relied upon to support the reasons and specifications in the notice.
• C. The employee will be given the opportunity, but will not be obliged, to respond orally and/or in writing prior to a decision on the reasons and specifications, provided that the oral and/or written reply is received by the Employer within a reasonable period of time after the employee's receipt of the letter of proposed action. Any request for an oral reply must be submitted within seven (7) days of the employee's receipt of the letter of proposed action. The Employer agrees that when a record of an oral/written reply is made, it will always contain as an attachment all documents submitted by the employee and his/her representative as part of that reply. Any documents not submitted at the oral reply, but received within five (5) workdays of the date of the oral reply, where practicable, will be included in the reply record.
• D. If the employee elects to make an oral reply, the Employer will make a verbatim transcript of the oral reply and will provide a copy to the employee or designated Union representative upon request.

Section 4

• A. An official who sustains the proposed reasons against an employee in an action based on unacceptable performance will set forth findings with respect to each reason and specification against the employee in the final decision letter. Such letter will also address factual disputes, if any, raised by the employee's reply by stating the reasons why each factual dispute was rejected.
• B. An action to remove or downgrade an employee based on unacceptable performance must be supported by substantial evidence.
• C. The final decision in the case of a proposed action to either remove or downgrade an employee based on unacceptable performance will be made no later than

• thirty (30) days after the expiration of the advance notice period, and will be based only on those instances of unacceptable performance by the employee which occurred during the one (1) year period ending on the date of the advance notice letter.
• D. The final decision regarding a proposed action based on unacceptable performance will be concurred in by an official in a higher position than the official who proposed the action.
• E. Consistent with 5 CFR 432.107, in taking an action based on unacceptable performance, the Employer will consider the employee's performance during the advance notice period. If, because of performance improvement by the employee during the notice period, the employee is not reduced in grade or removed, and the employee's performance continues to be acceptable for one (1) year from the date of the advance written notice letter, any entry or other notification of the unacceptable performance for which the action was proposed shall be removed from any Agency record relating to the employee.

Section 5

• A. An employee will, upon request, be furnished a copy of that portion of all written documents which contain evidence relied on by the Employer which forms the basis for the reasons and specifications. In addition, the employee and/or NTEU may request other information in response to the proposed action, consistent with appropriate Statutes (e.g., 5 U.S.C. §7114(b)(4), 5 U.S.C. §552, and 5 U.S.C. §552a).
• B. Upon request, an employee, or the Union when designated by the employee, will be furnished all written documents pertaining to the unacceptable performance of the employee that were available to the proposing official at the time the notice of proposed action was issued to the employee. The parties will issue joint guidance to facilitate the timely and accurate release of information, and meet on a periodic basis to assess the effectiveness of the process and ways in which it can be improved.
• C. If probable cause exists and is demonstrated to the arbitrator by the Union on appeal that all information provided for in an investigative report relating to the specifications has not been furnished by the Employer, upon request of the arbitrator the report will be furnished for an "in camera" inspection to be made in conformity with the Privacy Act (5 U.S.C. §552a). Material determined by the arbitrator to be favorable under the criteria of subsection 5B and not previously furnished to the Union will be furnished to the Union.
• D. Nothing in this section is to be construed as a waiver of the employee's or Union's right to request additional information under other authorities such as the Freedom of Information Act, Privacy Act, or Civil Service Reform Act.

Section 6

• A. If the Employer's final decision is to effect an action based on unacceptable performance against a bargaining unit employee, the employee may appeal the decision to the Merit Systems Protection Board (MSPB) in accordance with applicable law, or, with the consent of the Union to binding arbitration. Under no condition may an employee appeal an action based on unacceptable performance to both MSPB and arbitration.
• B. The Union must notify the IRS of any appeal to arbitration filed by the Union. Such notice must be sent to an e-mail address established by the Employer. The e-mail address will be provided to the Union at the national level when initially established and whenever changed in future. The Union must invoke arbitration within thirty (30) days of the date the employee receives the final decision issued by the Employer.
• C. If timely notice of appeal is not received, the action may not be appealed to the arbitration procedure.
• D. The standard of proof in any arbitration over this matter will be substantial evidence. The Employer will raise no cases against the employee other than those cited in the notice of proposed action except to the extent necessary to rebut defenses or arguments raised in the employee's behalf, such as an argument that the cited cases are but a small portion of the employee's total work product which is otherwise acceptable.
• E. In order to expedite resolution of removals and reductions in grade of three (3) grades or more which are covered by this article, the parties agree to the following procedures for arbitration of such actions:
  • 1. the parties shall establish a hearing date so that the hearing will be conducted within 120 days of the effective date of the action; if the parties are unable to mutually establish such a date, the assigned arbitrator shall be empowered and instructed, upon the motion of either party, to establish a date and conduct the hearing within the time set forth above; once established, a hearing date may be changed only by agreement of the parties and the arbitrator shall permit either party to proceed ex parte in the event the other party fails to present its case on the established hearing date;
  • 2. if the assigned arbitrator is unable to provide a hearing date within the time set forth above, a new arbitrator will be promptly assigned; and
  • 3. the assigned arbitrator shall be responsible for scheduling closure of the record and issuing a decision not later than sixty (60) days after the hearing is concluded.

Section 7

To the extent not prohibited by law, the Employer will provide the Union with unsanitized copies of all unacceptable performance action proposal and decision letters, simultaneously with their issuance to employees. One (1) copy shall be provided to the impacted chapter office and one (1) copy shall be provided to the appropriate NTEU National Field Office. It shall be the responsibility of both the chapter and the NTEU National Field Office to maintain this information for their use in grievances and arbitrations and all other representative matters.

Section 8

At the time the Employer issues its proposal letter and its decision letter to an employee, it shall include a letter written by the Union which outlines the employee's right to representation and his or her appeal rights. Failure to include such a letter shall be grievable, but shall not constitute a basis for overturning the adverse action.

Section 9

The letters referenced in this Article and the case data will be coded with the same case number in order for the Union to cross-reference the data. The Employer will sanitize documents in compliance with applicable laws, rules and regulations, and not over-sanitize so as to cause the information to be unusable.

Article 41
Employee Grievance Procedure

Section 1

• A. The Employer and the Union recognize and endorse the importance of bringing to light and addressing employee concerns through the negotiated grievance procedure promptly and, whenever possible, informally. In this regard, the parties will ensure that their representatives are properly authorized to resolve matters raised under this Article.
• B. The purpose of this Article is to provide an orderly method for the disposition and processing of grievances brought by employees or by the Union on behalf of employees. Nothing in this Article shall apply to institutional grievances, covered by the procedure in Article 42 of this Agreement.
• C. The Union will submit virtually all Contract-related matters to the negotiated grievance procedure for final disposition and will use sparingly unfair labor practice procedures concerning Contract-related issues which may occur in the day-to-day administration of this Agreement.
• D. The grievance procedures of this Article shall not apply to the following:
  • 1. any claimed violation of Subchapter III of Chapter 73 of Title 5 (relating to prohibited political activities);
  • 2. retirement, life insurance, or health insurance;
  • 3. a suspension or removal under Section 7532 of Title 5 (relating to national security matters);
  • 4. any examination, certification or appointment;
  • 5. the classification of any position that does not result in the reduction in grade of the employee;
  • 6. matters already filed with the Merit Systems Protection Board (MSPB) as an adverse action which are, therefore, statutorily precluded from duplicate filing under this procedure;
  • 7. matters over which an employee has filed a written complaint of discrimination through the formal EEO complaint process;
  • 8. the separation of a probationary employee;
  • 9. matters specifically excluded by other articles of this Agreement; and
  • 10. non-selection from among a group of properly ranked and certified candidates consistent with 5 CFR 335.103(d).

Section 2

• A. Consistent with 5 U.S.C. §7103(a)(9), the term "grievance" means any complaint:
  • 1. by an employee concerning any matter relating to the employment of the employee;
  • 2. by the Union concerning any matter relating to the employment of any employee; or
  • 3. by an employee or the Union concerning:
    • (a) the effect or interpretation, or a claim of a breach, of a collective bargaining agreement; or
    • (b) any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment.
• B. Grievances filed by the NTEU National President concerning an issue of rights afforded to employees under this Agreement which otherwise would be recognized as separate grievances from (two) or more chapters on the same issues will be filed with the IRS Human Capital Officer. The parties will follow the procedures in Article 42, Section 4 for such grievances.
• C. This procedure will be the only administrative procedure available to bargaining unit employees for the processing and disposition of grievances as defined in subsections 2A1-3 above, except when the employee has a statutory right of choice under 5 U.S.C. §7121, including adverse actions, actions taken for unacceptable performance, or EEO complaints. This subsection will be applied consistent with 5 U.S.C. §7121.

• D. Matters not grievable under this Agreement that are covered by the Agency grievance procedure are grievable under that procedure. However, stewards representing IRS employees under that procedure may use reasonable time consistent with law and regulation to represent employees in that process.
• E. Employees who believe they have been illegally discriminated against on the basis of race, color, religion, sex, national origin, age, or disability have the right to raise the matter under the statutory procedure or the negotiated grievance procedure of this Agreement, but not both. Employees will have elected a forum (grievance or EEO procedure) if the grievance is reduced to writing alleging discrimination or a formal EEO complaint is filed. For employees who contact an EEO counselor to raise allegations of discrimination, information regarding the IRS Equal Employment Opportunity Alternative Dispute Resolution process may be found in the "Reference Guide for Employees and Managers" dated August 14, 2008. The guide is posted on the National EEO web site.

Section 3

• A. Grievances under this Article may be initiated by employees in the unit either singly or jointly, or by the Union on behalf of employees. Grieving employees will have the right to be accompanied, represented and advised by the Union steward or Chief Steward or Chapter President responsible for representing them at whatever step of the procedure a grievance is being heard. Union stewards who file grievances concerning a matter of personal concern will be represented by a steward appointed by the Chapter President.
• B. Where an employee has initiated a grievance and does not elect to be represented by the Union, the Union will have a right to be present at all informal and formal discussions between the employee and the Employer concerning the grievance. The Employer will resolve all grievances presented under such circumstances consistent with the terms and conditions of this Agreement. The Union will be provided with a copy of the Employer's response one (1) full workday before it is given to the grieving employee.

Section 4 Streamlined Grievance Process

• A. The parties acknowledge that certain types of individual grievances must be addressed as quickly as possible, and they agree to do so according to a special streamlined grievance and arbitration procedure. For workplace complaints identified below, streamlined grievances will be processed in accordance with the uniform employee grievance procedure as described in Section 7, except that such grievances will be initiated at Step 2 of that procedure. As an exception to subsection 7C below, if an Executive hears the grievance at Step 2, the grievance meeting will be held face-to-face unless the parties mutually agree to a meeting by telephone or other electronic means. This process will be used to consider grievances concerning:
  • 1. outside employment;
  • 2. hours of work (including AWS, credit hours, religious compensatory time and distribution of overtime);
  • 3. absence and leave (including AWOL);
  • 4. disputes over the approval of official/bank time under Article 9;
  • 5. denial of a request for pseudonym;
  • 6. issuance of a leave restriction letter; and
  • 7. any other matters which the parties mutually agree upon.

Section 5 Mass Grievances

• A. In the event that two (2) or more grieving employees, within the jurisdiction of one (1) chapter, have designated the Union to serve as their representative on one (1) or more grievances involving the same facts and the same issues, or the Union has filed one (1) or more grievances on behalf of two (2) or more employees, within the jurisdiction of one (1) chapter, involving the same facts and the same issues, time and travel pursuant to Article 9, subsection 9C of this Agreement will be available as follows:
  • 1. If the grievance involves more than one (1) but less than twenty (20) employees in a chapter, three (3) grievants may participate or attend.
  • 2. If the grievance involves twenty (20) or more employees in a chapter, four (4) grievants may participate or attend.
  • 3. The Employer will only reimburse reasonable travel and per diem for the attendance of one (1) grievant at the meeting. All other grievants outside the commuting area of the meeting must participate by telephone or other electronic means.
• B.
  • 1. Mass grievances will be processed in accordance with the uniform employee grievance procedure as described in Section 7, except that such grievances will be initiated at Step 2 of that procedure.
  • 2. Mass grievances involving employees who work in one (1) Division or the organizational equivalent will be filed with the first level Executive in that Division.
  • 3. Mass grievances involving employees in more than one (1) Division or organizational equivalent will be filed with the first level Executive in either Division.
  • 4. The Executive receiving the mass grievance will hear the grievance or designate a substitute who

• • has the formal organizational authority to hear the grievance. As an exception to subsection 7C below, if an Executive hears the mass grievance at Step 2, the mass grievance meeting will be held face-to-face unless the parties mutually agree to a meeting by telephone or other electronic means.
• C.
  • 1. Within ten (10) workdays of the meeting, the Executive or designee shall issue a written response, or via e-mail if available, to the appropriate Chapter President.
  • 2. When the Employer responds to a mass grievance, it will respect the privacy of employees by placing any details about individual employees that merit privacy in response that are only sent to the individual employees and his or her representative.
  • 3. The Union must notify the IRS of any appeal to arbitration filed by the Union. Such notice must be sent to an e-mail address established by the Employer. The e-mail address will be provided to the Union at the national level when initially established and whenever changed in future. The Union must invoke arbitration within thirty (30) days of the date it receives the final decision issued by the Employer. If a final decision was not timely rendered, the Union may invoke arbitration at any time after the date on which the decision was due and up until thirty (30) days after the decision is eventually provided.

Section 6

• A. Except as provided in other provisions of this Agreement, grievances will not be considered unless they are filed with the Employer within fifteen (15) workdays after the incident which gives rise to the grievance or within fifteen (15) workdays after the aggrieved became aware of the matters out of which the grievance arose.
• B. The grievance must provide information concerning the nature of the grievance, the articles and sections of the Agreement that are alleged to have been violated and the remedy sought. If the grievance alleges a violation of law or regulation, the law or regulation will be identified to the extent possible (e.g., the "Privacy Act" in lieu of the specific citation). Failure to cite a specific Agreement provision, regulation, or statute shall not bar an employee or the Union from amending the grievance to include such violations provided the issue has been raised in the grievance.
• C. Grievances regarding disputes over any appraisals received by an employee pursuant to the provisions of Article 12 of this Agreement will be initiated at the second step of the employee grievance process. The second level supervisor or designee, who approved the rating of record, will serve as the Step 2 hearing official. If the Step 2 management official is an Executive, there will be no further appeal of the matter under the grievance procedure. However, the grievant/Union will only be entitled to one (1) face-to-face meeting when grieving appraisals. The grievant/Union will identify in the written grievance whether that meeting will be at the second or third step.
• D. For grievances alleging discrimination as described in subsection 2E above, the time limits for filing grievances shall be forty-five (45) days. This forty-five (45) day period may be extended if the employee utilizes alternative dispute resolution procedures. Any extension of the filing requirements will be consistent with the procedures outlined in the alternative dispute resolution process utilized by the employee. However, the above procedure will in no way extend the 180 day requirement provided by regulation.
• E. When the employee alleges discrimination under the negotiated grievance procedure, the grievance shall specify the specific nature of the discrimination (for example, race, religion) and the facts upon which the allegation is based. Pursuant to subsection 8B, this information must be raised no later than the conclusion of the Step 2 meeting. In cases arising under Articles 38, 39, or 40 in which discrimination is alleged, this information should be presented in writing at the oral or written reply stage, even if no other oral/written reply is presented, in order for the allegations of discrimination to be grieved or arbitrated under the terms of this Agreement. Regardless of the above, allegations of discrimination must be described in writing no later than the submission of the notice invoking arbitration and in all cases it must be raised within the deadlines provided by the regulations.

Section 7 Uniform Employee Grievance Procedure

The parties are encouraged to seek informal resolution of grievances. Accordingly, such matters may be brought to the attention of the employee's supervisor for informal resolution, before filing a formal grievance.

Step 1

• A.
  • 1. A grievance is required to be presented in writing, or via e-mail if available, to the employee's immediate supervisor.
  • 2. Either party may then request that a meeting be held on the matter, or the parties may agree that no meeting be held. If either party elects a meeting, it shall take place within five (5) workdays of the submission of the grievance. The meeting will be face-to-face unless the parties agree to hold the meeting by telephone or other electronic means.

• • 3. The meeting shall include the supervisor or designee, the employee, the employee's Union representative and a Labor Relations Specialist at the option of the supervisor conducting the meeting. The meeting is intended to provide the opportunity for the employee to present and discuss aspects of the issues giving rise to his or her grievance with the supervisor in an attempt to clarify issues and find an appropriate resolution.
  • 4. The employee and the Union will be provided with a written response, or via e-mail if available, to the grievance within ten (10) workdays of the close of the meeting, if one is held, or within five (5) workdays of the filing of the grievance if a meeting is not held. Such decision will not normally exceed two (2) pages in length and will include the name of the next higher level supervisor.

Step 2

• B. If the issue remains unresolved, the employee may appeal the grievance to the appropriate next higher level of management (absent formal agreement otherwise). The appeal may be made via e-mail if available. Such notice of appeal will be timely if made within ten (10) workdays of receipt by the Union of the decision in Step 1. If an appeal is made, either party may request that a meeting be held to discuss the matter or the parties may agree that no meeting be held. If either party elects a meeting, it shall take place within ten (10) workdays of the notice of appeal.
• C. With the exception of subsections 4A, 5B4 and 6C above, the employee, a designated Union representative and the next higher-level supervisor or designee will hold a telephonic meeting or a meeting using other electronic means. The meeting may be face-to-face for participants located in the commuting area of the meeting. The supervisor conducting the meeting may elect to invite a Labor Relations Specialist.
• D. The employee and the Union will be provided with a written response, or via e-mail if available, to the grievance within ten (10) workdays of the close of the meeting, if one is held, or within five (5) workdays of the appeal if a meeting is not held. The response will also include the e-mail address for the Human Capital Officer and the Director Workforce Relations Division to receive copies of any appeal to arbitration filed by the Union if the Step 2 hearing official is an Executive.
• E. If the Step 2 management official is an Executive, there will be no further appeal under the grievance procedure.

Step 3

• F. If the issue is not resolved, the employee may appeal the grievance to the appropriate next higher level of management (absent formal agreement otherwise). Such appeal must be filed in writing, or via e-mail if available, within ten (10) workdays of receipt of the Step 2 decision (as noted above, if the Step 2 management official was an Executive, there will be no further appeal under the grievance procedure and the matter may proceed directly to arbitration, in accordance with Article 43).
• G. The employee, a designated Union representative and the next higher-level supervisor or designee will meet face-to-face, unless the parties mutually agree to a telephonic meeting or a meeting using other electronic means. One (1) additional full time Union representative located in the commuting area of the meeting may also attend. Travel and per diem is not authorized for the second steward. The supervisor conducting the meeting may elect to invite a Labor Relations Specialist.
• H. Within ten (10) workdays of the meeting, the Executive or designee shall issue a written response, or via e-mail if available, to the Union one (1) day prior to providing a copy of the response to the employee. The response will also include the e-mail address for the Human Capital Officer and the Director Workforce Relations Division. If the Step 3 meeting cannot be held within thirty (30) days of the appeal, the Union may invoke arbitration in accordance with Article 43.
• I. The Employer will provide, on a semi-annual basis, a report to National NTEU on the number of grievances filed for each time period. The report will show the number of grievances filed per third-line manager and the number settled or withdrawn at each step of the process.

Section 8

• A.
  • 1. The parties will have the obligation of making a complete record during the steps of the grievance procedure, including the obligation to produce witnesses who have information relevant to the matter at issue. The Union will be granted access to returns and return information consistent with I.R.C. Section 6103(l)(4).
  • 2. The parties acknowledge their obligation to produce witnesses who have information relevant to the matter at issue. Evidence and witnesses that are relevant to the resolution of a grievance may be introduced at any stage of the grievance or arbitration process. The Union's request for the participation of a witness, who is a bargaining unit employee of the IRS, will normally be approved consistent with Article 9.

• • • 3. The Union may request the appearance of witnesses during any step of the grievance process who are employees of the IRS.
    • 4. The parties agree to exchange information that is relevant and necessary to understand the dispute and maximize the potential of settling the matter. Disputes over access to information will be determined in accordance with applicable law, rule or regulation.
• B. New issues may not be raised by either party unless they have been raised at Step 2 of the grievance procedure provided, however, the parties may agree to join the new issues with a grievance in process.
• C. Procedural arbitrability issues, such as timeliness and failure to adequately state a claim, must be raised by the Employer no later than the last grievance response. However, if the issue is whether the matter is substantively arbitrable, that matter may be raised at any time by the Employer and the grievance will be amended to include the issue.

Section 9

• A. If the matter is not resolved following the last step meeting and/or written response, the decision may be appealed to binding arbitration as provided for in Article 43.
• B. The Union must notify the IRS of any appeal to arbitration filed by the Union. Such notice must be sent to an e-mail address established by the Employer. The e-mail address will be provided to the Union at the national level when initially established and whenever changed in future. The Union must invoke arbitration within thirty (30) days of the date it receives the final decision issued by the Employer. If a final decision was not timely rendered, the Union may invoke arbitration at any time after the date on which the decision was due and up until thirty (30) days after the decision is eventually provided.

Section 10

• A. The parties may agree to extend the time limits in this Article.
• B. The parties may agree in writing to waive any step of this procedure.
• C. Responses to grievances shall be served on the appropriate Union steward or the grievant if not represented by a steward consistent with subsection 3B of this Article. Time periods set forth in this Article shall be computed from the day after the receipt of a grievance or appeal by the Employer and the day after the receipt of a response by the Union. Consistent with subsection 3B of this Article, the Union steward shall be provided with a copy of the Employer's response one (1) full workday before it is given to the grieving employee. The response may be provided via e-mail if available.
• D. The Employer will give a substantive response to each issue raised by the Union in the written response.

Section 11

Failure on the part of the aggrieved or the Union to prosecute the grievance at any step of the procedure will have the effect of nullifying the grievance. Failure on the part of the Employer to meet any of the requirements of the procedure will permit the aggrieved or the Union to move to the next step.

Section 12

• A. Grievance meetings will be scheduled at a time agreeable to the Union and the Employer. In the absence of agreement, the meeting will be scheduled during the grievant's normal tour of duty. Under circumstances where the meeting cannot be scheduled during the representative's normal tour of duty, and the representative is not eligible for credit hours under Article 9, the Employer has determined that the representative's tour of duty will be changed to meet this representational need consistent with agreements regarding tours of duty.
• B. The location of grievance meetings will be mutually determined by the Employer and the Union. If the parties cannot agree, the meeting will be held at the post-of-duty of the grievant or other site chosen by the Employer.

Section 13

In grievances where the steward or manager is processing or hearing one of his or her first three (3) grievances, either party may bring one (1) additional representative, with the Union representative on official time under Article 9.

Section 14

• A.
  • 1. Where the Union believes that a personnel action involves an alleged violation of a prohibited personnel action, the Union will raise that matter in the grievance, reply, or arbitration invocation as appropriate. Where there is a proposed personnel action that the Union believes involves an alleged violation of a prohibited personnel action, the Union shall file a written statement with the deciding official for the proposed action, which shall contain the same information as a grievance. Once raised, the Union may petition an arbitrator for a stay of the action.
  • 2. The parties will create two (2) arbitrators panels. There will be at least three (3) arbitrators on each panel. One (1) panel will be for cases arising from offices west of the Mississippi, the other panel will be for cases arising from offices east of the Mississippi. These arbitrators will hear all stay cases in their geographic areas for the duration of this Contract.

• B. The petition for a stay must contain the following:
  • 1. a chronology of the facts including a description of the alleged prohibited personnel practices involved and the action or actions that the Agency has taken or intends to take which form the basis for the petition;
  • 2. evidence and/or argument showing that the action taken or threatened is a personnel action, that the action taken or threatened was based on a prohibited personnel practice, and that there is a substantial likelihood that the grievant will prevail on the merits of the appeal;
  • 3. documentary evidence that supports the stay request; and
  • 4. a specific request for remedies.
• C. The petition for a stay must be filed with the selected arbitrator and the appropriate servicing General Legal Services office, which will be identified in the deciding official's response. Filings may be made by personal delivery, FAX, mail or by commercial overnight delivery, or e-mail with voice mail or telephonic confirmation.
• D. The arbitrator will have jurisdiction over the case forty-eight (48) hours after the Union has served the Employer with its petition for a stay. After forty-eight (48) hours, the arbitrator has the authority to issue an interim stay, pending a final decision on the stay. Any interim stay ordered must be consistent with the burdens of proof and standards established by the Merit Systems Protection Board cases concerning stays. If the arbitrator does not issue an interim stay, the Employer's response must be filed within ten (10) days of the expiration of the forty-eight (48) hour period consistent with subsection 15E below. If the arbitrator does issue an interim stay, any request for an extension of time to file the Employer's response will be granted by the arbitrator. The arbitrator will not issue an interim stay ex parte, but will discuss and accept any argument or comment via telephone relevant to an interim stay request.
• E. The Employer's response must be filed with the arbitrator and grievant's representative within ten (10) days of the expiration of the forty-eight (48) hour period. The Employer's response must contain the following:
  • 1. evidence and/or argument addressing whether there is a substantial likelihood that the grievant will prevail on the merits of the appeal;
  • 2. evidence and or argument addressing whether the grant of a stay would result in extreme hardship; and
  • 3. any documentation relevant to the Agency's position on these issues.
• F.
  • 1. Once under his or her jurisdiction, the arbitrator may seek a mutually agreed resolution of the matter, or clarify the issues via telephone prior to issuing a decision on the stay. The arbitrator must issue a written ruling on the stay petition within ten (10) days of the receipt of the Employer's response. The arbitrator may only grant a stay consistent with the burdens of proof and standards established by the Merit Systems Protection Board in cases concerning 5 U.S.C. §1221(c). A stay must not be granted for any other reason. Any and all decisions on a petition for a stay are final and binding on the parties.
  • 2. A hearing on a petition for a stay may be held by mutual agreement of the parties or by order of the arbitrator. Any hearing must be scheduled and held within thirty (30) days of the date of the petition requesting a stay. The arbitrator must issue a written ruling consistent with subsection 15F1.
  • 3. The arbitrator will be responsible for assessing any and all costs associated with the petition for a stay consistent with Article 43, subsection 4A1.
• G. Absent mutual agreement, the arbitrator who ruled on the request for a stay will hear the ultimate arbitration related to that action, if any. When such arbitration decisions result in the reversal of the Agency's action, based upon a specific finding of a prohibited personnel practice, the arbitrator has the authority to issue all legal remedies.