B-182521, DEC 20, 1974, 54 COMP GEN 503

B-182521, DEC 20, 1974, 54 COMP GEN 503

LEAVES OF ABSENCE - ANNUAL - AGENCY-FORCED - CURTAILMENT OF AGENCY OPERATIONS AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES REQUESTS RULING INVALIDATING AIR FORCE LOGISTICS COMMAND (AFLC) POLICY TO REDUCE OPERATIONS AT ITS INSTALLATIONS DURING 1974 CHRISTMAS HOLIDAY PERIOD AND FORCE EMPLOYEES TO TAKE ANNUAL LEAVE ON BASIS THAT AFLC IS NOT AUTHORIZED TO PROMULGATE POLICY THAT VIOLATES COLLECTIVE BARGAINING AGREEMENTS BETWEEN INSTALLATIONS AND LOCAL UNIONS. SINCE MATTER IS PRESENTLY BEFORE ASSISTANT SECRETARY FOR LABOR MANAGEMENT RELATIONS AS UNFAIR LABOR PRACTICE COMPLAINT, COMPTROLLER GENERAL DECLINES TO RULE ON ISSUE.

IN THE MATTER OF UNION PROTEST AGAINST AGENCY-FORCED ANNUAL LEAVE POLICY, DECEMBER 20, 1974:

THIS CASE CONCERNS A REQUEST FOR A DECISION FROM THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFGE) AS TO WHETHER THE UNITED STATES AIR FORCE LOGISTICS COMMAND (AFLC), WHICH HAS DISCRETIONARY AUTHORITY UNDER STATUTE AND REGULATIONS TO PRESCRIBE THE TIME PERIODS IN WHICH ANNUAL LEAVE MAY BE GRANTED TO EMPLOYEES, MAY, IN THE EXERCISE OF THIS DISCRETION, CLOSE ALL AFLC BASES FROM DECEMBER 21, 1974, TO JANUARY 1, 1975, AND REQUIRE EMPLOYEES TO TAKE ANNUAL LEAVE, WHICH ALLEGEDLY SUPERSEDES COLLECTIVE BARGAINING AGREEMENTS NEGOTIATED BY SUBORDINATE ELEMENTS PURPORTING TO COVER THIS SUBJECT.

HEADQUARTERS, AFLC, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, DIRECTED SUBORDINATE ACTIVITES AND INSTALLATIONS THROUGH MESSAGE, R161515Z, FEBRUARY 1974, SUBJECT: CURTAILMENT OF OPERATIONS, TO REDUCE OPERATIONS DURING THE HOLIDAY PERIOD OF DECEMBER 21, 1974, THROUGH JANUARY 1, 1975, IN ORDER TO MAXIMIZE ENERGY CONSERVATION. THE TEXT OF THE MESSAGE READS AS FOLLOWS:

SUBJECT: CURTAILMENT OF OPERATIONS.

1. THIS MESSAGE HAS PRECEDENT OVER PREVIOUS HQ AFLC CORRESPONDENCE CONCERNING WORKLOAD AND LEAVE SCHEDULE PLANNING.

2. AFLC ACTIVITIES WILL OPERATE UNDER A MINIMUM WORKLOAD SCHEDULE DURING 21 DECEMBER 1974 THROUGH 1 JANUARY 1975. ONLY MINIMUM ESSENTIAL PERSONNEL NECESSARY TO PROVIDE SUPPORT WILL BE REQUIRED DURING THIS PHASE DOWN PERIOD. PLANNING WILL INCLUDE THE CAPABILITY TO RESPOND TO EMERGENCY SITUATIONS AND TO ASSURE THAT ESSENTIAL WORK, SUCH AS MEETING NCRS, IS ACCOMPLISHED.

3. DEVIATIONS FROM THE ABOVE POLICY, WHEN NECESSARY TO ASSURE REQUIRED CUSTOMER SUPPORT, COMPUTER OPERATIONS AND PAY OF PERSONNEL WILL BE WORKED OUT BY THE APPROPRIATE OPR WITH THEIR COUNTERPART HQ AFLC OCS.

4. THE ABOVE POLICY IS DESIGNED TO MAXIMIZE ENERGY SAVINGS BY REDUCING INDUSTRIAL OPERATIONS TO THE MAXIMUM EXTENT POSSIBLE CONSISTENT WITH YOUR MISSION. EARLY AND CAREFUL PLANNING TO ASSURE THIS OBJECTIVE IS A NECESSITY.

5. ANNUAL LEAVE WILL BE SCHEDULED IN ADVANCE TO COVER THE ABOVE DATES EXCEPT FOR THE ACTUAL HOLIDAYS INVOLVED. EMPLOYEES CAN VOLUNTEER FOR LEAVE WITHOUT PAY. ENFORCED ANNUAL LEAVE POLICIES WILL BE UTILIZED DURING THE ABOVE PERIOD. EMPLOYEES WHO DO NOT HAVE SUFFICIENT ANNUAL LEAVE ACCRUED OR TO BE ACCRUED SHOULD BE ASSIGNED TO OTHER USEFUL WORK. THE POLICIES TO BE USED FOR THOSE WHO DO NOT HAVE SUFFICIENT ANNUAL LEAVE TO COVER THE PERIOD WILL BE IN ACCORDANCE WITH FPM SUPPLEMENT 990-2 BOOKS 610 AND 530. FURLOUGHS WILL NOT BE USED. RECOGNIZED UNIONS SHOULD BE ADVISED OF THESE POLICIES AND CONSULTED ON LOCAL IMPLEMENT POLICIES AND PRACTICES.

THE AFGE HAS ALSO FILED AN UNFAIR LABOR PRACTICE (ULP) COMPLAINT WITH THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS (A/SLMR), DEPARTMENT OF LABOR, CHARGING THAT THE SECRETARY OF THE AIR FORCE AND COMMANDER, AFLC, VIOLATED SECTIONS 19(A)(1) AND 19(A)(6) OF EXECUTIVE ORDER 11491, AS AMENDED, 3 C.F.R. SEC. 254 (1974), HEREINAFTER REFERRED TO AS THE ORDER, IN THAT THE AGENCY HAD NO AUTHORITY TO PROMULGATE THE SUPERSEDING REGULATIONS COVERING THE SCHEDULED ANNUAL LEAVE POLICY IN CONNECTION WITH THE HOLIDAY BASE CLOSURES AND THAT IT FAILED TO CONSULT, CONFER, OR NEGOTIATE THE MATTER WITH THE UNION PRIOR TO THE PROMULGATION.

ANNUAL LEAVE FOR FEDERAL EMPLOYEES IS GOVERNED BY THE PROVISIONS OF 5 U.S.C. CH. 63 (1970), AND REGULATIONS PROMULGATED BY THE CIVIL SERVICE COMMISSION (CSC) UNDER AUTHORITY GRANTED BY 5 U.S.C. SEC. 6311 (1970). THE CSC HAS ISSUED REGULATIONS SETTING FORTH AGENCY AUTHORITY IN GRANTING ANNUAL LEAVE TO EMPLOYEES IN FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, SEC. S3-4B (REVISED JULY 1969), WHICH READS AS FOLLOWS:

B. AGENCY AUTHORITY. (1) LEGAL BASIS. (A) LAW. "(D) THE ANNUAL LEAVE PROVIDED BY THIS SUBCHAPTER, INCLUDING ANNUAL LEAVE THAT WILL ACCRUE TO AN EMPLOYEE DURING THE YEAR, MAY BE GRANTED AT ANY TIME DURING THE YEAR AS THE HEAD OF THE AGENCY CONCERNED MAY PRESCRIBE." (SECTION 6302(D) OF TITLE 5, UNITED STATES CODE.)

(B) TAKING OF LEAVE. THE TAKING OF ANNUAL LEAVE IS AN ABSOLUTE RIGHT OF THE EMPLOYEE, SUBJECT TO THE RIGHT OF THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED TO FIX THE TIME AT WHICH LEAVE MAY BE TAKEN (39 COMP. GEN. 611, CITING 16 COMP. GEN. 481).

THE ABOVE-QUOTED REGULATION INDICATES THAT AGENCY HEADS HAVE DISCRETION IN GRANTING EMPLOYEES ANNUAL LEAVE AND IN REQUIRING EMPLOYEES TO TAKE ANNUAL LEAVE. MOREOVER, WE HAVE CONSISTENTLY RULED THAT AN AGENCY HEAD'S DISCRETION UNDER STATUTE AND REGULATION IS SUFFICIENTLY BROAD TO ENABLE HIM TO DENY EMPLOYEES ANNUAL LEAVE DURING ONE PERIOD OF TIME AND INSTRUCT THEM TO TAKE ANNUAL LEAVE AT OTHER SPECIFIC TIMES TO SATISFY THE NEEDS OF THE FEDERAL SERVICE. 31 COMP. GEN. 581, 586 (1952); 32 ID. 204 (1952); 40 ID. 312, 314 (1960).

THE AFGE ARGUES THAT ONCE COLLECTIVE BARGAINING AGREEMENTS COVERING A PARTICULAR MATTER SUCH AS THE SCHEDULING OF ANNUAL LEAVE HAVE BEEN NEGOTIATED BETWEEN AFLC BASES AND THE AFGE LOCAL UNIONS ON AN INDIVIDUAL BASIS, HIGHER LEVEL COMMANDS, INCLUDING THE AGENCY HEADQUARTERS, MAY NOT THROUGH THE PROMULGATION OF REGULATIONS SUPERSEDE THESE AGREEMENT PROVISIONS. IN THIS CONNECTION, SECTION 12(A) OF THE ORDER PROVIDES:

SEC. 12. BASIC PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN AGENCY AND A LABOR ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS -

(A) IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THE AGREEMENT, OFFICIALS AND EMPLOYEES ARE GOVERNED BY EXISTING OR FUTURE LAWS AND THE REGULATIONS OF APPROPRIATE AUTHORITIES, INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL; BY PUBLISHED AGENCY POLICIES AND REGULATIONS IN EXISTENCE AT THE TIME THE AGREEMENT WAS APPROVED; AND BY SUBSEQUENTLY PUBLISHED AGENCY POLICIES AND REGULATIONS REQUIRED BY LAW OR BY THE REGULATIONS OF APPROPRIATE AUTHORITIES, OR AUTHORIZED BY THE TERMS OF A CONTROLLING AGREEMENT AT A HIGHER AGENCY LEVEL ***

THE AFGE CONTENDS THAT IN DEPARTMENT OF THE NAVY, SUPERVISOR SHIPBUILDING AND REPAIR, PASCAGOULA, MISSISSIPPI, A/SLMR NO. 390, A CASE INVOLVING A ULP COMPLAINT FILED BY THE UNION UNDER SECTION 19(A)(6) OF THE ORDER, THE A/SLMR RULED PURSUANT TO SECTION 6 OF THE ORDER THAT, FOR A SUPERSEDING REGULATION TO BE CONSIDERED A REGULATION OF AN "APPROPRIATE AUTHORITY," IT MUST BE ISSUED BY AN AUTHORITY OUTSIDE THE AGENCY WHICH HAS THE LEGAL JURISDICTION TO BIND THAT AGENCY.

NO SUCH OUTSIDE AUTHORITY HAS DEALT WITH THIS MATTER. (ALTHOUGH THE AFLC CITES A GENERAL SERVICES ADMINISTRATION (GSA) FEDERAL MANAGEMENT CIRCULAR ON FEDERAL ENERGY CONSERVATION AS JUSTIFICATION FOR THE CLOSING, SUCH CLOSING WAS NEVER DIRECTED BY THE CIRCULAR.) THEREFORE, THE AFGE URGES US TO ISSUE A RULING INVALIDATING THE AFLC DIRECTIVE REQUIRING SUBORDINATE ACTIVITIES AND INSTALLATIONS TO SCHEDULE LEAVE FOR EMPLOYEES DURING THE HOLIDAY PERIOD WHERE SUCH ORDER VIOLATES PROVISIONS OF EXISTING COLLECTIVE BARGAINING AGREEMENTS.

WE ARE OF THE OPINION THAT IT WOULD BE INAPPROPRIATE FOR THIS OFFICE TO RULE ON THE AFOREMENTIONED ISSUE INASMUCH AS IT IS THE SUBJECT OF A ULP COMPLAINT PRESENTLY BEFORE THE A/SLMR WHO HAS JURISDICTION TO DECIDE SUCH MATTERS UNDER PROVISIONS OF SECTION 6 OF THE ORDER.

IN ADDITION TO THE QUESTION SET FORTH ABOVE, THE AFGE HAS ALSO REQUESTED US TO RULE ON THE ISSUE OF WHETHER EMPLOYEES WHO LOSE ANNUAL LEAVE THROUGH THE AFLC BASE CLOSURES POLICY, IF THE POLICY IS SUBSEQUENTLY DETERMINED TO BE IN VIOLATION OF COLLECTIVE BARGAINING AGREEMENTS OR IS FOUND TO BE A ULP BY AN ARBITRATOR OR OTHER APPROPRIATE DECISION MAKER IN ACCORDANCE WITH NEGOTIATED GRIEVANCE OR ULP PROCEDURES, HAVE A RIGHT TO RECOVER ANY LEAVE LOST AS A RESULT OF SUCH VIOLATION.

WE ARE UNABLE TO RENDER A DECISION AT THIS TIME ON THIS QUESTION AS IT APPLIES SPECIFICALLY TO THE SITUATION DESCRIBED FOR TWO REASONS. FIRST, THE PARTICULAR FINDINGS OF FACT IN EACH INDIVIDUAL CASE WOULD GOVERN OUR DECISION, AND NO SUCH FINDINGS HAVE BEEN MADE BY AN ARBITRATOR OR OTHER APPROPRIATE FACT FINDER TO DATE. FOR EXAMPLE, WE HAVE NO BASIS FOR CONCLUDING THAT ANY BREACH OF A COLLECTIVE BARGAINING AGREEMENT HAS IN FACT TAKEN PLACE OR THAT THE ORDER HAS BEEN VIOLATED IN ANY RESPECT. SECOND, IT WOULD BE IMPOSSIBLE FOR US TO OBTAIN AN ADMINISTRATIVE REPORT WITHIN THE TIME FRAME REQUESTED.

THE AFGE CONCEDES AND WE AGREE THAT THE SECRETARY OF THE AIR FORCE ORIGINALLY HAD DISCRETIONARY AUTHORITY, WHICH HE DELEGATED TO THE COMMANDER, AFLC, TO REQUIRE CIVILIAN EMPLOYEES WITHIN HIS COMMAND TO SCHEDULE ANNUAL LEAVE DURING THE CHRISTMAS HOLIDAY PERIOD BETWEEN DECEMBER 21, 1974, AND JANUARY 1, 1975. IT IS, OF COURSE, POSSIBLE FOR AN AGENCY HEAD, OR ONE TO WHOM HE HAS DELEGATED SUCH DISCRETIONARY AUTHORITY, TO FULLY OR PARTIALLY RELINQUISH HIS DISCRETION WITH REGARD TO SCHEDULING ANNUAL LEAVE OF EMPLOYEES THROUGH THE PROMULGATION OF AGENCY REGULATIONS OR THROUGH THE NEGOTIATION OF COLLECTIVE BARGAINING AGREEMENTS WHICH INCLUDE PROVISIONS WHICH, IN EFFECT, MAKE THE TIME THAT LEAVE IS SCHEDULED FOR EMPLOYEES A NONDISCRETIONARY MATTER. HOWEVER, WE DO NOT PRESENTLY HAVE ANY DOCUMENTS BEFORE US WHICH ESTABLISH THAT THE DISCRETION TO SCHEDULE LEAVE WAS IN FACT RELINQUISHED IN WHOLE OR IN PART.

AS A GENERAL PRINCIPLE, WITHOUT REGARD TO THE SPECIFIC FACTS AS PRESENTED BY THE AFGE, WE THINK AN EMPLOYEE WOULD BE ENTITLED TO HAVE HIS LEAVE RESTORED WHEN AN APPROPRIATE DECISION MAKER HAS MADE A DEFINITIVE FINDING THAT THE ORDER OR A COLLECTIVE BARGAINING AGREEMENT, WHICH CONTAINS NONDISCRETIONARY PROVISIONS WITH RESPECT TO THE SCHEDULING OF LEAVE, WAS VIOLATED BY THE BASE CLOSURE AND, AS A DIRECT CONSEQUENCE, A PARTICULAR EMPLOYEE HAS SUFFERED AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WITHIN THE MEANING OF THE BACK PAY ACT OF 1966, 5 U.S.C. SEC. 5596 (1970). 54 COMP. GEN. 312 (1974) 54 ID. 403 (1974); B-181173, NOVEMBER 13, 1974. IN THIS REGARD, THE DECISION MAKER WOULD HAVE TO SHOW A DIRECT CONNECTION BETWEEN THE VIOLATION OF THE AGREEMENT OR ORDER AND THE HARM TO THE EMPLOYEE. SUPPORTED BY SUCH DETERMINATION, AN AGENCY COULD LEGALLY IMPLEMENT AN ARBITRATOR'S AWARD OR ORDER DIRECTING THAT LOST ANNUAL LEAVE BE RESTORED TO AN EMPLOYEE IN COMPLIANCE WITH REQUIREMENTS OF APPLICABLE STATUTES AND REGULATIONS.

SHOULD THE CLOSURE OF THE BASE TAKE PLACE AND ANY OF THE ANTICIPATED PROBLEMS ARISE, IT IS ASSUMED THAT BOTH THE AFLC AND THE AFGE WILL AVAIL THEMSELVES OF THE ESTABLISHED PROCEDURES FOR PROCESSING ANY CLAIMS FOR RESTORATION OF LEAVE, INCLUDING THE OPPORTUNITY TO TAKE AN EXCEPTION TO ANY AWARD THAT MAY BE MADE TO THE FEDERAL LABOR RELATIONS COUNCIL, IF APPROPRIATE. ANY FURTHER QUESTIONS THAT MAY ARISE AS TO WHETHER AN AWARD RESTORING LOST LEAVE MAY BE LEGALLY IMPLEMENTED CAN, OF COURSE, BE SUBMITTED DIRECTLY TO THIS OFFICE AS WELL.