B-193389, NOVEMBER 29, 1978

B-193389, NOVEMBER 29, 1978

DIGEST: EMPLOYEE TOOK ANNUAL LEAVE FOR VACATION AWAY FROM HOME. ARBITRATOR AWARDED 2 DAYS' ADMINISTRATIVE LEAVE BECAUSE SNOW CONDITIONS AT THE EMPLOYEE'S PLACE OF VACATION OVER 200 MILES FROM THE PERMANENT DUTY STATION PREVENTED THE EMPLOYEE'S SCHEDULED RETURN TO DUTY. THE AWARD MAY NOT BE IMPLEMENTED SINCE EMPLOYEE HAS RESPONSIBILITY TO RETURN TO DUTY AFTER VACATION AND ADMINISTRATIVE LEAVE MAY NOT LAWFULLY BE GRANTED FOR SUCH AN EMERGENCY PERSONAL TO THE EMPLOYEE.

PEGGY ANN MISTLER - ARBITRATION AWARD OF ADMINISTRATIVE LEAVE - DELAYED RETURN TO DUTY:

THIS ACTION RESPONDS TO THE FEDERAL LABOR RELATIONS COUNCIL'S REQUEST OF OCTOBER 30, 1978, FOR AN ADVANCE DECISION ON IMPLEMENTING THE AWARD OF ADMINISTRATIVE LEAVE GRANTED BY THE ARBITRATOR IN INTERNAL REVENUE SERVICE, BROOKHAVEN SERVICE CENTER AND NATIONAL TREASURY EMPLOYEES UNION (JAMES A. MORRIS, ARBITRATOR), FLRC NO. 78A-68. THIS CASE IS BEFORE THE FEDERAL LABOR RELATIONS COUNCIL AS A RESULT OF A PETITION FOR REVIEW FILED BY THE AGENCY ALLEGING THAT THE AWARD VIOLATES APPLICABLE LAWS AND REGULATIONS. OUR JURISDICTION IS BASED UPON THE AUTHORITY OF THE COMPTROLLER GENERAL UNDER 31 U.S.C. 74 AND 82D TO MAKE DECISIONS INVOLVING THE EXPENDITURE OF APPROPRIATED FUNDS AND IS EXERCISED UNDER THE RULES PUBLISHED IN 43 FED.REG. 32, 395, JULY 27, 1978, (4 C.F.R.CHAPTER I, PART 21).

THE ISSUE IS WHETHER 2 DAYS OF PAID ADMINISTRATIVE LEAVE MAY LAWFULLY BE GRANTED BECAUSE SEVERE SNOW CONDITIONS AT THE EMPLOYEE'S PLACE OF VACATION PREVENTED THE EMPLOYEE'S SCHEDULED RETURN TO WORK AT HER PERMANENT DUTY STATION LOCATED OVER 200 MILES AWAY. FOR THE PURPOSE OF DECIDING THIS ISSUE, WE ASSUME ADMINISTRATIVE LEAVE TO MEAN AN EXCUSED ABSENCE WITH PAY WITHOUT THE AGENCY CHARGING THE EMPLOYEE'S ACCUMULATED ANNUAL LEAVE.

MRS. PEGGY ANN MISTLER, THE GRIEVANT IN THE ARBITRATION CASE, IS AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE (IRS) AT ITS BROOKHAVEN SERVICE CENTER, HOLTSVILLE, NEW YORK, ON LONG ISLAND. SHE WAS AUTHORIZED ANNUAL LEAVE FOR HER VACATION AND WAS DUE TO REPORT BACK AT THE BROOKHAVEN SERVICE CENTER ON MARCH 23, 1977. HOWEVER, SEVERE SNOW CONDITIONS HAD DEVELOPED WHERE SHE WAS VACATIONING AT DECATUR, OTSEGO COUNTY, NEW YORK, LOCATED OVER 200 MILES FROM THE BROOKHAVEN SERVICE CENTER. MRS. MISTLER MADE REASONABLE CONTINUING EFFORTS TO RETURN TO LONG ISLAND ON MARCH 22, 23, AND 24, 1977, BUT WAS UNABLE TO DO SO UNTIL MARCH 25, 1977, BECAUSE OF THE SNOW AT DECATUR. THIS EMERGENCY CONDITION DID NOT EXIST IN THE VICINITY OF THE BROOKHAVEN SERVICE CENTER. SHE NOTIFIED HER SUPERVISOR ON MARCH 22 AND 23 OF HER INABILITY TO REPORT FOR WORK AS SCHEDULED ON MARCH 23 AND 24, AND SHE LATER PROVIDED DOCUMENTATION OF HER EFFORTS TO RETURN.

SEVERAL DAYS LATER, MRS. MISTLER REQUESTED 16 HOURS OF ADMINISTRATIVE LEAVE FOR HER ABSENCE ON MARCH 23 AND 24 DUE TO INCLEMENT WHETHER CONDITIONS, PURSUANT TO ARTICLE 18, SECTION 2(B), OF THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE BROOKHAVEN SERVICE CENTER AND THE NATIONAL TREASURY EMPLOYEES UNION, CHAPTER NO. 99. THE REQUEST WAS DENIED BY BROOKHAVEN, LEADING TO THE FILING OF A GRIEVANCE AND AN ARBITRATION HEARING.

THE ARBITRATOR'S OPINION AWARDING THE ADMINISTRATIVE LEAVE WAS BASED ON BARGAINING HISTORY, PAST PRACTICE, AND THE INTENT OF THE PARTIES CONCERNING SECTION 2(E) OF ARTICLE 18. THE FULL TEXT OF ARTICLE 18, SECTION 2 OF THE AGREEMENT READS AS FOLLOWS:

"ARTICLE 18 ADMINISTRATIVE LEAVE, SECTION 2.

"A. THE EMPLOYER AGREES THAT 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 THE EMERGENCY, REASONABLE EFFORTS WILL BE MADE TO INFORM ALL EMPLOYEES BY PRIVATE OR PUBLIC MEDIA.

"B. IF EMERGENCY CONDITIONS DESCRIBED ABOVE EXIST AND PREVENT AN EMPLOYEE FROM GETTING TO WORK, AND THE CENTER IS NOT CLOSED, THE EMPLOYEE MAY BE GRANTED ADMINISTRATIVE LEAVE FOR ABSENCE FROM WORK FOR A PART OR ALL OF HIS/HER WORKDAY IF HE/SHE PROVIDES THE EMPLOYER WITH REASONABLY ACCEPTABLE DOCUMENTATION THAT HE/SHE MADE A REASONABLE, CONTINUING EFFORT TO REACH WORK BUT THAT THE EMERGENCY CONDITIONS PREVENTED HIM/HER FROM DOING SO. THE EMPLOYER AT HIS OPTION, MAY WAIVE THE ABOVE REQUIREMENT FOR DOCUMENTATION FOR ABSENCES OF ONE (1) HOUR OR LESS."

THE ARBITRATOR STATED THAT THERE WAS AN HONEST DIFFERENCE OF OPINION BETWEEN MANAGEMENT AND THE UNION OVER THE INTENDED MEANING OF SECTION 2(B). HE NOTED THAT THERE WAS NO SPECIFICATION THAT THE EMERGENCY WEATHER CONDITIONS MUST BE THOSE PREVAILING IN THE COMMUTING AREA. HE CONCLUDED THAT, SINCE THE PARTIES DID NOT RESTRICT THE EMERGENCY CONDITIONS PROVISION TO THE COMMUTING AREA OF THE BROOKHAVEN SERVICE CENTER, IT APPLIED TO A SITUATION WHERE THE EMERGENCY SNOW CONDITIONS OCCURRED AT THE PLACE OF VACATION OUTSIDE THE COMMUTING AREA. THEREFORE, HE FOUND THAT THE GRIEVANT WAS ENTITLED TO ADMINISTRATIVE LEAVE UNDER SECTION 2(B), ARTICLE 18.

THE IRS IN ITS PETITION FOR REVIEW BEFORE THE FEDERAL LABOR RELATIONS COUNCIL ARGUES THAT THE ARBITRATOR'S INTERPRETATION OF SECTION 2(B) COULD NOT LEGALLY HAVE BEEN WITHIN THE CONTEMPLATION OF THE PARTIES. THE IRS CHARACTERIZES A VACATION EMERGENCY PREVENTING AN EMPLOYEE'S RETURN TO DUTY AS PURELY PERSONAL TO THE EMPLOYEE IF THE EMERGENCY OCCURS AT A PLACE OF VACATION DISTANT FROM THE COMMUTING AREA. IT BELIEVES THAT A FEDERAL AGENCY MAY NOT LAWFULLY GRANT ADMINISTRATIVE LEAVE FOR A PURELY PERSONAL EMERGENCY OF THIS KIND.

THE UNION IN ITS RESPONSE AGREES WITH THE ARBITRATOR'S REASONING. POINTS OUT THAT AN ARBITRATOR'S AWARD SHOULD NOT BE INTERFERED WITH SOLEY BECAUSE A REVIEWING AUTHORITY INTERPRETS A COLLECTIVE BARGAINING AGREEMENT DIFFERENTLY THAN THE ARBITRATOR.

OUR REVIEW OF AN ARBITRATOR'S AWARD IS CONDUCTED TO DETERMINE WHETHER THE AWARD IS CONSISTENT WITH LAWS, REGULATIONS, AND APPLICABLE DECISIONS, AS THEY APPLY TO THE EXPENDITURE OF APPROPRIATED FUNDS. WE ACCEPT AN ARBITRATOR'S REASONABLE INTERPRETATION OF A NEGOTIATED AGREEMENT EVEN THOUGH WE MIGHT HAVE INTERPRETED IT DIFFERENTLY IN THE FIRST INSTANCE. ROY F. ROSS AND EVERETT A. SQUIRE, B-191266, JUNE 12, 1978. HOWEVER, WE CANNOT ACCEPT AN INTERPRETATION WHICH RESULTS IN AN AWARD THAT CONTRAVENES APPLICABLE LAWS AND REGULATIONS.

OUR DECISION IN 56 COMP.GEN. 865, 868 (1977), FOLLOWED OUR CONSISTENT HOLDINGS THAT ABSENCE SHOULD BE CHANGED TO ANNUAL LEAVE IF EXCESS TRAVEL TIME IS:

" * * * ATTRIBUTABLE TO THE EMPLOYEE'S DELAY OR DEVIATION FROM THE DIRECT ROUTE OF TRAVEL FOR PERSONAL REASONS OR WHERE THE EXCESS TRAVEL TIME IS OTHERWISE A MATTER OF PERSONAL CONVENIENCE TO THE EMPLOYEE * * * ."

THE GUIDELINES IN FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, BOOK 610, APPENDIX A, PARA. A-2, SIMILARLY EXCLUDE PERSONAL REASONS FOR GRANTING ADMINISTRATIVE LEAVE DURING EMERGENCY SITUATIONS. THERE, AN EMERGENCY IS DEFINED AS "ONE WHICH MAY PREVENT EMPLOYEES IN SIGNIFICANT NUMBERS FROM REPORTING FOR WORK * * * ." FURTHER, PARA. A-2 SAYS THE EMERGENCY "MUST BE GENERAL RATHER THAN PERSONAL IN SCOPE AND IMPACT."

THE ONLY STATUTORY PROVISION WE ARE AWARE OF WHICH SPECIFICALLY RECOGNIZES THE GENERAL AUTHORITY OF AN EXECUTIVE AGENCY TO GRANT ADMINISTRATIVE LEAVE IS 5 U.S.C. 6326, ENACTED BY PUBLIC LAW 90-588, OCTOBER 17, 1968, 82 STAT. 1151. IT AUTHORIZES UP TO 3 DAYS' ABSENCE WITH PAY AND WITHOUT CHARGE TO LEAVE FOR FUNERALS OF IMMEDIATE RELATIVES WHO DIE AS A RESULT OF SERVING IN THE ARMED FORCES IN A COMBAT ZONE. SUBSECTION (C) OF THIS PROVISION PROVIDES:

"THIS SECTION SHALL NOT BE CONSIDERED AS AFFECTING THE AUTHORITY OF AN EXECUTIVE AGENCY, EXCEPT TO THE EXTENT AND UNDER THE CONDITIONS COVERED UNDER THIS SECTION, TO GRANT ADMINISTRATIVE LEAVE EXCUSING AN EMPLOYEE FROM WORK WHEN IT IS IN THE PUBLIC INTEREST."

IN OUR VIEW THIS PROVISION MERELY SANCTIONS PREVIOUSLY ISSUED DECISION, REGULATIONS, AND INSTRUCTIONS REGARDING SUCH LEAVE. ITS SIGNIFICANCE TO THE PRESENT CASE, MOREOVER, IS THAT IT RECOGNIZES THAT THE ADMINISTRATIVE LEAVE AUTHORIZED IS TO FURTHER THE "PUBLIC INTEREST," AS DISTINCT FROM THE PURELY PERSONAL INTEREST OF THE EMPLOYEE.

THE PRESENT CASE INVOLVES THE TYPICAL SITUATION WHERE A FEDERAL AGENCY HAS NO CONTROL OVER SELECTING THE PLACE OF VACATION, WHICH CAN BE AS FAR DISTANT, REMOTE, AND SUSCEPTIBLE TO EMERGENCY SITUATIONS AS THE EMPLOYEE ELECTS. BY PICKING A VACATION SPOT AWAY FROM HIS PERMANENT DUTY STATION, THE EMPLOYEE ESTABLISHES THE DEGREE OF RISK THAT HIS RETURN TO DUTY WILL BE DELAYED. IT HAS ALWAYS BEEN THE RESPONSIBILITY OF THE EMPLOYEE TO RETURN TO DUTY AFTER A VACATION. IN THIS SENSE, AN EMERGENCY AT THE VACATION SITE AND ANY RESULTING DELAY ARE ESSENTIALLY PERSONAL TO THE EMPLOYEE. AS DISCUSSED ABOVE UNDER OUR DECISION IN 56 COMP.GEN. 865 (1977), ADMINISTRATIVE LEAVE IS NOT PERMITTED FOR SUCH PERSONAL REASONS. THIS KIND OF EMERGENCY CONCERNS THE EMPLOYEE'S PRIVATE INTEREST, RATHER THAN THE PUBLIC INTEREST RECOGNIZED AS APPROPRIATE FOR ADMINISTRATIVE LEAVE UNDER 5 U.S.C. 6326(C).

THE ARBITRATOR'S AWARD VIOLATES APPLICABLE LAW AND REGULATIONS GOVERNING THE AUTHORITY OF THE IRS TO GRANT ADMINISTRATIVE LEAVE. CONSEQUENTLY THE AWARD OF ADMINISTRATIVE LEAVE TO MRS. MISTLER MAY NOT BE IMPLEMENTED.