National Grievance — Restoration of “Use or Lose” Leave Forfeited Because of the Partial Government Shutdown
M E M O R A N D U M
TO: IRS Chapter Presidents
RE: IRS – National Grievance — Restoration of “Use or Lose” Leave Forfeited Because of the Partial Government Shutdown
SUMMARY: NTEU has filed a national grievance against the IRS for refusing to restore to employees and/or credit the Leave Bank for “use or lose” leave forfeited because of the partial government shutdown unless the employee can show that it was “scheduled and approved” before November 24, 2018.
Today, NTEU filed the attached national grievance against the IRS for its determination that bargaining unit employees’ “use or lose” annual leave forfeited due to the December 22, 2018–January 25, 2019 lapse in appropriations (i.e. the 35-day shutdown) would not be restored because it had not been “scheduled and approved” by a manager by November 24, 2018. The grievance alleges that the agency’s unilaterally issued guidance constitutes an unfair labor practice under §7116(a)(5) and that the refusal to restore and/or credit the Leave Bank for forfeited “use or lose” leave violates Article 47, Sections 1 and 2, Article 54, Sections 2B and 2C and Article 31, Section 2D of the 2019 National Agreement.
On or about April 2, 2019, we learned that the IRS had issued guidance to employees on the restoration of “use or lose” leave. In that guidance, the agency notified bargaining unit employees that their forfeited “use or lose” annual leave would not be restored unless the employee could demonstrate that the leave was both “scheduled and approved” by a manager prior to November 24, 2018. The guidance also states that “use or lose” leave donated to the Leave Sharing program (per Article 31) but not processed prior to the lapse in appropriations would not be restored. This IRS guidance was not negotiated with NTEU; is inconsistent with past practice regarding the scheduling of “use or lose” leave; and is inconsistent with government-wide regulations, e.g. 5 U.S.C. §6304(d)(1) and 5 CFR §630.308(a), as well as the applicable OPM guidance issued in CPM 2019-02 and CPM 2019-06.
As to remedies, NTEU has requested, among other things, that the IRS: (i) cease and desist from violating the parties’ past practice; Article 54, Section 2B; Article 31, Section D1 of the National Agreement; and 5 U.S.C. §7116(a)(5); (ii) make whole any and all bargaining-unit employees who forfeited “use or lose” annual leave because of the shutdown and who had, prior to November 24, 2018, scheduled annual leave for pay period 26; (iii) make whole any and all bargaining-unit employees who forfeited “use or lose” annual leave scheduled for December 24, 2018 because the shutdown prevented employees from rescheduling or cancelling their scheduled leave after the date was declared a holiday; (iv) credit the Leave Sharing program for any and all bargaining-unit employee-donated “use or lose” annual leave that was not processed due to the agency’s unwarranted and unjustified personnel actions; and (v) grant NTEU any other appropriate remedies to which it is entitled under the law.
Please be advised that pursuant to Article 42, Section 4B, any local grievances involving an allegation that the agency refused to restore forfeited “use or lose” leave to employees affected by this national grievance shall be held in abeyance. Nonetheless, if you have already filed a local grievance on this issue, do not withdraw it at this point. And if you are planning to file a local grievance soon, please feel free to do so, especially if the factual circumstances of your local case(s) are different, or if your local grievance involves additional allegations not encompassed by this national grievance.
I will keep you posted on all developments concerning this grievance. In the meantime, please send copies of any and all local grievances on this subject, as well as any questions or comments you have regarding this grievance, to Amy Cocuzza, National Negotiator. She can be reached at 202-572-5500, ext. 7025, or via e-mail at amy.cocuzza@nteu.org.
Anthony M. Reardon
National President