B-179711, JUN 25, 1974, 53 COMP GEN 1054

B-179711, JUN 25, 1974, 53 COMP GEN 1054

ARBITRATION - AWARD - GRANT OF ADMINISTRATIVE LEAVE - IMPLEMENTATION BY AGENCY - NO LEGAL AUTHORITY EMPLOYEE WHO WAS INJURED AND UNABLE TO PERFORM HIS REGULAR DUTIES BUT WHO COULD PERFORM OTHER LIMITED DUTIES SUBMITTED GRIEVANCE ALLEGING THAT AGENCY DID NOT COMPLY WITH LABOR-MANAGEMENT AGREEMENT IN THAT IT DID NOT "MAKE EVERY EFFORT" TO FIND A LIMITED DUTY POSITION FOR HIM. RECOMMENDATION OF ARBITRATOR WHO UPHELD GRIEVANCE THAT EMPLOYEE BE GRANTED 30 DAYS ADMINISTRATIVE LEAVE MAY NOT BE IMPLEMENTED BY AGENCY SINCE THERE IS NO LEGAL AUTHORITY TO GRANT ADMINISTRATIVE LEAVE IN THE CIRCUMSTANCES. ARBITRATION - AWARD - IMPLEMENTATION BY AGENCY - OF PURPOSE - GRANT OF BACK PAY ALTHOUGH AGENCY MAY NOT PROPERLY IMPLEMENT ARBITRATOR'S AWARD GRANTING EMPLOYEE WHOSE GRIEVANCE WAS UPHELD 30 DAYS ADMINISTRATIVE LEAVE SINCE NO LEGAL AUTHORITY EXISTS FOR SUCH LEAVE, IT MAY IMPLEMENT THE PURPOSE OF AWARD BY GRANTING EMPLOYEE BACK PAY UNDER 5 U.S.C. 5596 IF IT IS FOUND THAT HAD THE AGENCY NOT VIOLATED COLLECTIVE BARGAINING AGREEMENT BY NOT MAKING EVERY EFFORT TO FIND THE EMPLOYEE AN ALTERNATE JOB WHEN HE WAS INCAPACITATED FOR PERFORMANCE OF HIS REGULAR DUTIES A JOB WOULD HAVE BEEN FOUND FOR THE EMPLOYEE. HOWEVER, ARBITRATOR'S AWARD IS ADVISORY ONLY AND MAY BE IMPLEMENTED AT THE DISCRETION OF THE AGENCY.

IN THE MATTER OF THE GRANT OF ADMINISTRATIVE LEAVE UNDER ARBITRATION AWARD, JUNE 25, 1974:

THIS MATTER INVOLVES A REQUEST FOR AN ADVANCE DECISION AS TO WHETHER AN ARBITRATION AWARD GRANTING ADMINISTRATIVE LEAVE ON A RETROACTIVE BASIS TO MR. GERALD L. MITCHELL, AN EMPLOYEE OF THE PUGET SOUND NAVAL SHIPYARD, MAY PROPERLY BE IMPLEMENTED.

THE FACTS IN THE MATTER AS STATED IN THE ARBITRATOR'S ADVISORY OPINION INDICATE THAT MR. MITCHELL WAS EMPLOYED BY THE SHIPYARD AS AN "OUTSIDE MACHINIST-MARINE" AND THAT ON MAY 7, 1971, WHILE WORKING ABOARD A NUCLEAR SUBMARINE, HE SPRAINED HIS LOWER BACK AND AS A RESULT WAS ON SICK LEAVE FOR A PERIOD OF ONE WEEK. UPON RETURNING TO WORK, THE SHIPYARD DISPENSARY PLACED LIMITATIONS ON THE TYPE OF WORK HE COULD PERFORM, IN GENERAL PRECLUDING HIM FROM WORKING IN CONFINED OR RESTRICTED LOCATIONS AND LIMITING THE WEIGHT HE COULD LIFT. THESE WORK LIMITATIONS MADE IT IMPOSSIBLE FOR MR. MITCHELL TO PERFORM HIS NORMAL JOB, ALTHOUGH HE WAS FIT TO PERFORM OTHER LESS DEMANDING WORK. WHEN HE SOUGHT SUCH DUTY FROM THE PERSONNEL DEPARTMENT, HE WAS INFORMED THAT NO LIMITED DUTY JOB WAS AVAILABLE AND HE WAS SENT HOME, WHERE HE REMAINED ON LEAVE FOR ABOUT 1 MONTH. HE RETURNED TO WORK ON JUNE 17, 1971, WITH THE SAME WORK RESTRICTIONS, AND HIS IMMEDIATE SUPERVISOR FOUND HIM A DESK JOB AND THE PERSONNEL DEPARTMENT ARRANGED FOR HIM TO PERFORM THIS LIMITED DUTY FROM JUNE 17, 1971, TO JUNE 30, 1971, WHEN MR. MITCHELL RETURNED TO HIS REGULAR POSITION.

SUBSEQUENTLY, ON AUGUST 15, 1972, THE SAME BACK INJURY CAUSED THE DISPENSARY TO AGAIN RESTRICT MR. MITCHELL TO LIMITED DUTY. HE REPORTED TO THE PERSONNEL DEPARTMENT AND REQUESTED A LIMITED DUTY ASSIGNMENT. THAT DEPARTMENT MADE A SHORT PHONE CALL TO THE ADMINISTRATIVE OFFICE OF MR. MITCHELL'S SHOP AND WAS ADVISED THAT NO SUCH DUTY WAS AVAILABLE. HE WAS ONCE AGAIN SENT HOME. ON SEPTEMBER 15, 1972, HE AGAIN REPORTED TO THE PERSONNEL DEPARTMENT SEEKING LIMITED DUTY WORK AND WAS AGAIN ADVISED AFTER A SHORT TELEPHONE CALL TO HIS SHOP THAT NO LIMITED DUTY WORK WAS AVAILABLE AND HE WAS ONCE MORE SENT HOME. ON SEPTEMBER 19, 1972, HE RETURNED TO HIS MACHINIST JOB ON A REGULAR BASIS.

THEREAFTER, MR. MITCHELL AND HIS UNION FILED A GRIEVANCE CLAIMING THAT THE SHIPYARD HAD VIOLATED THE PROVISIONS OF SECTION 8 OF ARTICLE XII OF A COLLECTIVE-BARGAINING AGREEMENT BETWEEN THE UNION AND THE SHIPYARD. THAT SECTION PROVIDES THAT THE EMPLOYER WILL "MAKE EVERY EFFORT" TO PLACE AN EMPLOYEE, ASSIGNED A TEMPORARY RESTRICTED WORK CLASSIFICATION, ON A JOB, IF AVAILABLE, WITHIN THE PRESCRIBED RESTRICTION. THE MATTER WAS SUBMITTED TO ARBITRATION AND THE ARBITRATOR IN AN ADVISORY OPINION CONCLUDED THAT THE SHIPYARD HAD VIOLATED THE TERMS OF THE AGREEMENT IN THAT IT WAS NOT SHOWN THAT THE SHIPYARD HAD MADE EVERY EFFORT TO PLACE THE EMPLOYEE IN A LIMITED DUTY POSITION. HOWEVER, THE ARBITRATOR DID NOT FIND THAT A LIMITED DUTY POSITION FOR WHICH MR. MITCHELL WAS QUALIFIED WAS AVAILABLE AT ANY TIME DURING THE PERIOD HE WAS IN A LIMITED DUTY CATEGORY AND ON LEAVE. THE ARBITRATOR THEN MADE THE FOLLOWING AWARD:

IT IS THE JUDGMENT OF THE ARBITRATOR THAT MITCHELL SHOULD BE PLACED ON ADMINISTRATIVE LEAVE STATUS FROM AUGUST 15, 1972, THROUGH SEPTEMBER 15, 1972, IN SETTLEMENT OF THIS GRIEVANCE. IT IS THE ARBITRATOR'S UNDERSTANDING THAT THIS RESULT IS THE EQUIVALENT OF "BEING MADE WHOLE" FOR ONE MONTH'S WAGE AND BENEFITS.

THE AGENCY HAS ACCEPTED THE FINDING OF THE ARBITRATOR THAT THE TERMS AND CONDITIONS OF THE AGREEMENT PROVIDING THAT THE EMPLOYER WOULD MAKE EVERY EFFORT TO PLACE AN EMPLOYEE ON A JOB WHEN ASSIGNED A TEMPORARY RESTRICTED WORK CLASSIFICATION HAD BEEN VIOLATED. HOWEVER, THE AGENCY QUESTIONS WHETHER UNDER APPLICABLE LAW AND REGULATIONS IT MAY PROPERLY IMPLEMENT THE AWARD REMEDY THAT HAS BEEN FASHIONED BY THE ARBITRATOR BY RETROACTIVELY PLACING MR. MITCHELL IN AN ADMINISTRATIVE LEAVE STATUS FOR A PERIOD OF 30 DAYS.

THERE IS NO GENERAL STATUTORY AUTHORITY UNDER WHICH FEDERAL EMPLOYEES MAY BE EXCUSED FROM THEIR OFFICIAL DUTIES WITHOUT LOSS OF PAY OR CHARGE TO LEAVE. HOWEVER, EXCUSED ABSENCES HAVE BEEN AUTHORIZED IN SPECIFIC SITUATIONS BOTH BY LAW, AS IN SECTION 6322 OF TITLE 5, U.S. CODE, WHICH AUTHORIZES AN ABSENCE OF UP TO 4 HOURS IN ANY ONE DAY FOR A VETERAN TO PARTICIPATE IN FUNERAL SERVICES UNDER CERTAIN CIRCUMSTANCES, AND BY EXECUTIVE ORDER, SUCH AS E.O. 10529, APRIL 22, 1954, WHICH PROVIDES THAT EMPLOYEES MAY BE EXCUSED FOR A REASONABLE AMOUNT OF TIME UP TO A MAXIMUM OF 40 HOURS IN A CALENDAR YEAR TO PARTICIPATE IN FEDERALLY RECOGNIZED CIVIL DEFENSE PROGRAMS. IN ADDITION, OVER THE YEARS IT HAS BEEN RECOGNIZED THAT IN THE ABSENCE OF A STATUTE CONTROLLING THE MATTER, THE HEAD OF AN AGENCY MAY IN CERTAIN SITUATIONS EXCUSE AN EMPLOYEE FOR BRIEF PERIODS OF TIME WITHOUT CHARGE TO LEAVE OR LOSS OF PAY. SOME OF THE MORE COMMON SITUATIONS IN WHICH AGENCIES GENERALLY EXCUSE ABSENCE WITHOUT CHARGE TO LEAVE ARE DISCUSSED IN FEDERAL PERSONNEL MANUAL SUPPLEMENT 990- 2, BOOK 630, SUBCHAPTER S11. THESE INCLUDE (1) REGISTRATION AND VOTING, (2) BLOOD DONATIONS, (3) TARDINESS AND BRIEF ABSENCES, (4) TAKING EXAMINATIONS, (5) ATTENDING CONFERENCES OR CONVENTIONS AND (6) REPRESENTING EMPLOYEE ORGANIZATIONS.

FROM THE FOREGOING IT IS EVIDENT THAT IN THOSE SITUATIONS WHERE LAW AND EXECUTIVE ORDER PROVIDE FOR EXCUSED ABSENCES AS WELL AS IN THOSE WHERE THE AGENCY HEAD HAS DISCRETION TO EXCUSE EMPLOYEES FROM DUTY WITHOUT CHARGE TO LEAVE, THE AMOUNT OF EXCUSED TIME IS LIMITED TO RELATIVELY SHORT PERIODS. SIMILARLY, CIVIL SERVICE COMMISSION REGULATIONS PROVIDE THAT AUTHORITY TO GRANT GROUPS OF EMPLOYEES ADMINISTRATIVE LEAVE IN CONNECTION WITH THE TEMPORARY CLOSING OF AN INSTALLATION OR WITH THE INTERRUPTION OF ACTIVITIES IS LIMITED TO "*** SHORT PERIODS OF TIME NOT GENERALLY EXCEEDING 3 CONSECUTIVE WORK DAYS IN A SINGLE PERIOD OF EXCUSED ABSENCE." 5 CFR 610.302.

IN LIGHT OF THE AFOREMENTIONED LIMITATIONS ON THE DURATION FOR WHICH ADMINISTRATIVE LEAVE MAY BE GRANTED AND IN LIGHT OF THE SITUATIONS IN WHICH SUCH LEAVE MAY BE GRANTED WE CANNOT FIND THAT AUTHORITY EXISTS FOR GRANTING AN EXTENDED PERIOD OF EXCUSED ABSENCE SUCH AS THE 30 DAYS OF ADMINISTRATIVE LEAVE CONTAINED IN THE ARBITRATION AWARD IN THIS CASE BASED ON AN AGENCY'S VIOLATION OF A PROVISION IN A LABOR-MANAGEMENT AGREEMENT. THEREFORE WE MUST HOLD THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY IN RECOMMENDING THE GRANT OF ADMINISTRATIVE LEAVE. AN ARBITRATOR'S AWARD IS VOID AND UNENFORCEABLE TO THE EXTENT IT EXCEEDS THE ARBITRATOR'S AUTHORITY TO FASHION IT, NUEST V. WESTINGHOUSE AIR BRAKE CO., 313 F. SUPP. 1228 (1970). ACCORDINGLY THE AWARD OF 30 DAYS ADMINISTRATIVE LEAVE ON A RETROACTIVE BASIS TO MR. MITCHELL IN THIS CASE IS VOID AND UNENFORCEABLE.

HOWEVER, NOTWITHSTANDING THE AGENCY'S LACK OF AUTHORITY TO IMPLEMENT THE PART OF THE AWARD PERTAINING TO ADMINISTRATIVE LEAVE, IT MAY BE LEGALLY POSSIBLE FOR THE AGENCY TO CARRY OUT THE ARBITRATOR'S STATED PURPOSE OF COMPENSATING MR. MITCHELL FOR LOST WAGES AND BENEFITS DURING ALL OR PART OF THE PERIOD HE WAS ERRONEOUSLY PLACED IN AN ENFORCED LEAVE STATUS AS A RESULT OF THE AGENCY'S ADMITTED FAILURE TO USE ITS BEST EFFORT TO FIND SUITABLE EMPLOYMENT FOR HIM. AUTHORITY UNDER WHICH AN AGENCY MAY RETROACTIVELY ADJUST AN EMPLOYEE'S COMPENSATION IS CONTAINED IN THE BACK PAY ACT OF 1966, CODIFIED IN 5 U.S.C. 5596, WHICH PROVIDES, IN PART, AS FOLLOWS:

(B) AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR A PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF THE EMPLOYEE -

(1) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE FOR THE PERIOD FOR WHICH THE PERSONNEL ACTION WAS IN EFFECT AN AMOUNT EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS, AS APPLICABLE, THAT THE EMPLOYEE NORMALLY WOULD HAVE EARNED DURING THAT PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THAT PERIOD; AND

(2) FOR ALL PURPOSES, IS DEEMED TO HAVE PERFORMED SERVICE FOR THE AGENCY DURING THAT PERIOD, EXCEPT THAT THE EMPLOYEE MAY NOT BE CREDITED, UNDER THIS SECTION, LEAVE IN AN AMOUNT THAT WOULD CAUSE THE AMOUNT OF LEAVE TO HIS CREDIT TO EXCEED THE MAXIMUM AMOUNT OF THE LEAVE AUTHORIZED FOR THE EMPLOYEE BY LAW OR REGULATION.

THE CIVIL SERVICE COMMISSION HAS PROMULGATED IMPLEMENTING REGULATIONS TO THAT ACT IN TITLE 5 OF THE CODE OF FEDERAL REGULATIONS, PART 550, SUBPART H. AS TO WHETHER THOSE REGULATIONS PERMIT AN AGENCY HEAD TO TAKE COGNIZANCE OF AN ARBITRATOR'S FINDING THAT AN EMPLOYEE HAS BEEN SUBJECTED TO AN ERRONEOUS PERSONNEL ACTION BY HIS AGENCY AND PAY THE EMPLOYEE UNDER THE BACK PAY ACT, THE CIVIL SERVICE COMMISSION HAS STATED, IN A LETTER SET FORTH, IN PART, IN ATTACHMENT 2 TO FPM LETTER NO. 711-71, JUNE 3, 1973, AS FOLLOWS:

THE REGULATION (5 C.F.R. 550.803) SAYS IN EFFECT THE EMPLOYEE IS ENTITLED TO BACK PAY WHEN THE ... (AGENCY HEAD) OR OTHER APPROPRIATE AUTHORITY MAKES A DECISION ON HIS OWN INITIATIVE THAT THE ADVERSE PERSONNEL ACTION WAS UNJUSTIFIED OR UNWARRANTED. THE CONTEXT OF THE REGULATION SHOWS THAT THE EXPRESSION ON HIS OWN INITIATIVE DOES NOT PREVENT HIM FROM ACTING ON THE AWARD OF AN ARBITRATOR, BUT ONLY DISTINGUISHES THIS CASE FROM THE CASE IN WHICH HE ACTS ON AN APPELLATE DECISION.

THUS, WHERE AN ARBITRATOR HAS MADE A FINDING THAT AN AGENCY HAS VIOLATED A COLLECTIVE BARGAINING AGREEMENT TO THE DETRIMENT OF AN EMPLOYEE, THE AGENCY HEAD MAY ACCEPT THAT FINDING AND AWARD THE EMPLOYEE BACK PAY FOR THE PERIOD OF THE ERRONEOUS PERSONNEL ACTION SO LONG AS THE CIRCUMSTANCES SURROUNDING THE ERRONEOUS ACTION FALL WITHIN THE CRITERIA SET FORTH IN THE BACK PAY ACT AND THE IMPLEMENTING REGULATIONS. THE CRITERIA FOR AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION ARE SET FORTH IN 5 CFR 550.803 (D) AND (E) WHICH PROVIDE:

(D) TO BE UNJUSTIFIED OR UNWARRANTED, A PERSONNEL ACTION MUST BE DETERMINED TO BE IMPROPER OR ERRONEOUS ON THE BASIS OF EITHER SUBSTANTIVE OR PROCEDURAL DEFECTS AFTER CONSIDERATION OF THE EQUITABLE, LEGAL, AND PROCEDURAL ELEMENTS INVOLVED IN THE PERSONNEL ACTION.

(E) A PERSONNEL ACTION REFERRED TO IN SECTION 5596 OF TITLE 5, U.S.C. AND THIS SUBPART IS ANY ACTION BY AN AUTHORIZED OFFICIAL OF AN AGENCY WHICH RESULTS IN THE WITHDRAWAL OR REDUCTION OF ALL OR ANY PART OF THE PAY ALLOWANCES, OR DIFFERENTIALS OF AN EMPLOYEE AND INCLUDES, BUT IS NOT LIMITED TO, SEPARATIONS FOR ANY REASON (INCLUDING RETIREMENT), SUSPENSIONS, FURLOUGHS WITHOUT PAY, DEMOTIONS, REDUCTIONS IN PAY, AND PERIODS OF ENFORCED PAID LEAVE WHETHER OR NOT CONNECTED WITH AN ADVERSE ACTION COVERED BY PART 752 OF THIS CHAPTER.

IN THE PRESENT CASE, UNDER THE PROVISIONS OF THE ABOVE-QUOTED REGULATIONS THE AGENCY HEAD OR HIS REPRESENTATIVE MAY DETERMINE THAT AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION HAS OCCURRED ON THE BASIS OF THE ARBITRATOR'S FINDING THAT THE AGENCY BREACHED ITS BARGAINING AGREEMENT WITH RESPECT TO MR. MITCHELL BY FAILING TO MAKE SUFFICIENT EFFORT TO FIND HIM A LIMITED DUTY POSITION WHICH RESULTED IN HIS BEING PLACED IN AN ENFORCED LEAVE STATUS IF IT IS ALSO DETERMINED THAT IT WAS PROBABLE THAT A POSITION COMPATIBLE WITH MR. MITCHELL'S PHYSICAL LIMITATIONS COULD HAVE BEEN LOCATED HAD EVERY EFFORT BEEN MADE FOR ALL OR PART OF THE PERIOD MR. MITCHELL WAS IN A LEAVE STATUS. IT IS NOT NECESSARY THAT THE PERIOD OR PERIODS OF JOB AVAILABILITY ESTABLISHED BY THE AGENCY COINCIDE WITH THE 30 -DAY PERIOD AWARDED BY THE ARBITRATOR SINCE THE ARBITRATOR DID NOT BASE HIS 30-DAY AWARD ON THE PROBABLE AVAILABILITY OF A LIMITED DUTY POSITION DURING THE PERIOD. AFTER DETERMINING THE POSITION AVAILABILITY PERIODS, THE AGENCY WOULD THEN BE REQUIRED TO APPLY THE CORRECTIVE ACTION PROCEDURES OUTLINED IN 5 CFR 550.804.

ALTHOUGH THERE IS LEGAL AUTHORITY FOR THE AGENCY TO IMPLEMENT THE PURPOSE OF THE ARBITRATOR'S ADVISORY OPINION AND AWARD IF IT IS FOUND THAT IN ALL LIKELIHOOD A LIMITED DUTY JOB COULD HAVE BEEN FOUND FOR MR. MITCHELL, THE AGENCY MAY NOT DO SO IF SUCH A DETERMINATION CANNOT BE MADE. IN THAT CONNECTION IT IS NOTED THAT THE ARBITRATOR'S AWARD WAS ADVISORY AND MAY THEREFORE BE IMPLEMENTED AT THE DISCRETION OF THE AGENCY. 50 COMP. GEN. 708 (1971).