42:0067(3)AR - - ACT, NY State Council and DOD, NG Bureau, Division of Military and Naval Affairs - - 1991 FLRAdec AR - - v42 p67



[ v42 p67 ]
42:0067(3)AR
The decision of the Authority follows:


42 FLRA No. 3

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

ASSOCIATION OF CIVILIAN TECHNICIANS

NEW YORK STATE COUNCIL

(Union)

and

U.S. DEPARTMENT OF DEFENSE

NATIONAL GUARD BUREAU

DIVISION OF MILITARY AND NAVAL AFFAIRS

(Agency)

0-AR-2102

DECISION

September 10, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Paul E. Klein filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency did not file an opposition to the Union's exceptions.

A grievance was filed over the Agency's requirement that the grievants, who were ordered to active military duty over a period of time that included a Veterans Day holiday, charge that holiday to military leave. The Arbitrator denied the grievance.

For the following reasons, we conclude that the award is contrary to law and we will set the award aside.

II. Background and Arbitrator's Award

The grievants, who are employed by the Agency as technicians, were ordered to active military duty for a period of 7 days. The period of active duty ran "from Sunday, November 5, 1989 to and including Saturday, November 11, 1989[.]" Award at 2. November 11 is the Federal holiday known as "Veterans Day." See 5 U.S.C. § 6103(a). Because November 11, 1989, fell on a Saturday, the Agency's observance of the holiday was on Friday, November 10, 1989. The Agency required the grievants to charge their absences on November 10 to their accumulated military leave. The Union grieved the Agency's decision. The grievance was unresolved and subsequently submitted to arbitration.

The Arbitrator adopted for consideration the following issue as framed by the Union: "Did the Division of Military and Naval Affairs act appropriately when they charged Federal Technicians military leave for the 10th of November 1989?"

The Arbitrator noted that the Agency relied upon guidance provided by the National Guard Bureau; an Agency memorandum dated April 29, 1989; decisions of the Comptroller General; and Federal Personnel Manual (FPM) Supplement 990-2, Book 630, subchapter S9 (collectively referred to as "pertinent directives") to support its decision to charge the grievants' absences on November 10 to military leave. The Arbitrator stated that

[w]hat may be gleaned from these sources . . . is concisely stated in the FPM in the following way:

Non-workdays falling within a period of absence on military training duty are charged against 15 days of military leave allowed during the year; however non-workdays occurring at the beginning or end of the training period are not charged . . . .

See Award at 3 (quoting FPM Supplement 990-2, Book 630, subchapter S9, section S9-6.b.) (emphasis supplied by FPM).

The Agency argued before the Arbitrator that the Friday, November 10 holiday was an intervening day between the dates of November 5 through 11. Accordingly, the Agency concluded that "inasmuch as the 'non-workday and/or holiday' fell wholly within a period of active duty, . . . the pertinent directives mandate that the grievance be denied." Award at 4.

The Union contended before the Arbitrator that the Agency "incorrectly interpreted the pertinent directives." Id. at 3. The Union claimed that the directives cited by the Agency are "factually distinguishable since they contemplate a situation (unlike the one involved in this case) wherein a holiday falls on an 'intervening non-workday" within a series of workdays." Id. at 4. The Union referenced Article 28 of the parties' collective bargaining agreement to support its contention that the Friday observance of Veterans Day was a nonwork day for the grievants in their civilian capacity. The Union asserted that "the workdays in this instance are Monday through Thursday, November 6 - 9[."] Id. at 3-4. Accordingly, the Union claimed that "Sunday, November 5th is the first day [of the grievants' absence on military leave] and the ending dates are [the nonworkdays,] Friday and Saturday the 10th and 11th of November." Id. (emphasis supplied by Arbitrator). The Union concluded that "'there must be a workday at the beginning, and at the end [of a period of absence from an employee's civilian position on military leave] before a non-workday is subject to being charged against . . . military leave . . . [.]'" Id. at 4.

The Arbitrator noted that the parties did not contest that the Veterans Day holiday is a nonworkday. The Arbitrator further noted that:

[the parties] do not disagree that the extant policy which controls the result to be reached herein is, as set forth in the pertinent directives, that if a holiday occurs on the first or last day of a period of active duty it need not be charged against military leave, but if it occurs on any other day of a period of active duty it is considered to be an "intervening" non-workday and must be charged against military leave.

Id. at 4-5. In other words, the Arbitrator stated that "this case turns upon whether, in 1989, the Veterans Day holiday must be deemed to have occurred during or at the end of the grievants' one week tour of active duty." Id. at 5 (footnote omitted).

The Arbitrator determined that "for the purposes of this proceeding," Veterans Day could only be counted as a "holiday" once. Id. He found that the day on which the Veterans Day holiday was actually observed (November 10) must control when determining whether military leave must be used. He concluded that, because Veterans Day was observed on Friday, November 10, "it must be held that Saturday, November 11, was a regular workday and not a 'holiday' or 'non-workday' within the meaning of pertinent directives." Id. He ruled that the Agency "did act appropriately when it required the grievants to take military leave for November 10, 1989." Id. at 4. Accordingly, he denied the Union's grievance.

III. Exceptions

The Union argues that the Arbitrator incorrectly "suggests" that the Union is attempting to count a holiday more than once. Exceptions at 1. The Union states that its contention was that Friday, November 10 and Saturday November 11, 1989, were both nonworkdays which fell at the end of the grievants' military tour of duty. In this regard, the Union points out that FPM Supplement 990-2, Book 630, subchapter S9, section S9-6.b., referenced by the Arbitrator, states that "non-workdays occurring at the beginning or end of the training period are not charged [to military leave]." Id. The Union contends that in order for "a requirement to exist that non-workdays and/or holidays be charged to [military l]eave, these days must be intervening. This means that they must fall between two non-workdays." Id. at 2 (emphasis in original).(1)

The Union also takes issue with the Arbitrator's statement that he "cannot believe that the pertinent directives were intended to permit a holiday to be counted more than once in a situation like this." Id. at 1. The Union argues that it did not make this assertion. Further, the Union disputes the Arbitrator's finding that because the Veterans Day holiday was observed on Friday, November 10, then Saturday, November 11, was a regular workday. The Union states that "[t]here is no proof offered . . . that any of the individuals involved in this [case] were scheduled to work in their civilian capacity on Saturday[, November 11]." Id. Further, the Union states that "no evidence was forthcoming that Saturday was a scheduled workday for any [Agency] civilian . . . ." Id. The Union concludes that because the Arbitrator has "improperly converted the last day [of the grievants' period of absence from their technician positions on military leave], a Saturday - non-workday -, into a workday his [a]ward is deficient." Id.

IV. Analysis and Conclusions

For the following reasons, we conclude that the Arbitrator's award is contrary to law.

The statutory authority for the granting of military leave for reservists of the uniformed services and National Guardsmen who are civilian employees of the Federal Government is contained in 5 U.S.C. § 6323. Reservists and guardsmen are entitled to leave without loss of pay, time or performance or efficiency rating for up to 15 days in a fiscal year for training and, to the extent that the leave is not used in a fiscal year, allowed to accrue and accumulate leave for use in the succeeding fiscal year. 5 U.S.C. § 6323(a).(2)

As interpreted and applied by the Comptroller General, 5 U.S.C. § 6323(a) requires that in order for nonworkdays to be charged to military leave, they must occur wholly within the period of absence on military duty; that is, nonworkdays occurring at the beginning or end of the military training period are not charged to military leave. See 27 Comp. Gen. 245, 249, 253 (1947) (Sundays, holidays, and other nonworkdays that are not wholly within a period of absence on military duty are not charged to military leave. In other words, in order for employees' leave of absences from their "respective duties" to be charged to military leave, the absences must extend for a period "including time both before and after the non-workdays."). See also 64 Comp. Gen. 154 (1984) (nonworkdays of an employee's compressed work schedule at the beginning or end of active duty for training are not charged as military leave days); 61 Comp. Gen. 558, 559 (1982) (nonworkdays at the beginning and end of a period of absence on military duty are not charged to military leave).

The principles governing the interpretation and application of 5 U.S.C. § 6323(a) have been summarized in the FPM. See FPM Supplement 990-2, Book 630, subchapter S9. The Arbitrator stated that the Agency relied on pertinent directives to support its decision to charge the grievants' absences on November 10, 1989, to military leave. The Arbitrator found those pertinent directives were "concisely stated" in the FPM. Award at 3. FPM Supplement 990-2, Book 630, subchapter S9, section S9-6.b. provides the following:

Computation. Nonworkdays falling within a period of absence on military training duty are charged against 15 days of military leave allowed during the year; however non-workdays occurring at the beginning or end of the training period are not charged (27 Comp. Gen. 245; [27 Comp. Gen. 353] at page 357; and unpub. dec. B-133674, December 30, 1957).

(Emphasis in original.)

Section S9-2 of subchapter S9 notes that the legal authority for the entitlement of reservists of the Armed forces or members of the National Guard who are officers or employees of the United States to military leave of absence from their duties while they are on active military duty or are engaged in field or coast defense training is derived from the authority which is currently contained in 5 U.S.C. § 6323(a). Applying 5 U.S.C. § 6323(a), the above-cited Comptroller General decisions, and the FPM Supplement, we find that in order for nonworkdays to be charged to military leave, they must occur wholly within the period of absence on military duty; that is, nonworkdays occurring at the beginning or end of the military training period are not charged to military leave.

It is undisputed that Thursday, November 9, 1989, was a workday for the grievants in their civilian capacity and that Friday, November 10, 1989, was a nonworkday. Further, it is undisputed that Saturday, November 11, 1989, was the end of the grievants' period of active military duty. Based on 5 U.S.C. § 6323(a), as interpreted and applied by the Comptroller General, in order for Friday, November 10 to be charged to military leave, it must have occurred wholly within the grievants' period of absence from their technician positions on military duty. In this case, in order for Friday, November 10 to have been considered as occurring wholly within the grievants' period of absence on military duty and thus chargeable to military leave, Thursday, November 9 and Saturday, November 11, must have been workdays for the grievants in their civilian capacity. See, for example, 27 Comp. Gen. at 253.(3)  Therefore, the issue to be resolved is whether Saturday, November 11, 1989, was a workday or nonworkday for the grievants in their civilian capacity.

We agree with the Union that the Arbitrator erred in finding that Saturday, November 11, 1989, was a regular workday for the technicians involved in this case. There is no evidence to support such a finding and the Agency does not dispute that Saturday, November 11, was a nonworkday for the grievants in their civilian capacity. The Arbitrator offers no support for his statement that because Friday, November 10 must be considered the Veterans Day holiday, "it must be held that Saturday, November 11 was a regular workday and not a 'holiday' or 'non-workday' within the meaning of the pertinent directives." Award at 5. Therefore, we find that the Arbitrator misapplied the applicable law when he held that Saturday, November 11, must be considered a "regular workday[.]" See id.

Accordingly, we conclude that Saturday, November 11, 1989, was a nonworkday for the grievants in their civilian capacity. Because Saturday, November 11 was a nonworkday, we conclude that Friday, November 10 was not wholly within the grievants' period of absence from their technician positions on military duty. Therefore, under 5 U.S.C. § 6323(a), as interpreted and applied by the Comptroller General, Friday, November 10, 1989, is not properly chargeable to military leave.

We find that the Agency's reliance on 60 Comp. Gen. 381 (1981), to support its decision to charge November 10 to military leave is misplaced. In 60 Comp. Gen. 381, the Comptroller General held that two holidays, Memorial Day and Independence Day, were wholly within an employee's periods of absence from his regular duties on military leave. Therefore, the Comptroller General concluded that the employee in that case must be charged military leave for those days. In so holding, the Comptroller General relied on 27 Comp. Gen. 245 for the proposition that "[i]n computing leave of absence under 5 U.S.C. § 6323 nonworkdays, including holidays, must be charged to military leave unless the nonworkdays are not wholly within a period of absence on military leave." 60 Comp. Gen. at 384. Further, the Comptroller General has ruled that nonworkdays are not considered to be wholly within an employee's period of absence from his regular duties on military leave, "unless the absence extends for a period including time both before and after the non-work days." 27 Comp. Gen. at 249, 253. Inasmuch as the grievants' absence from their civilian duties did not extend for a period after the nonworkdays November 10 and 11, the Veterans Day holiday at question in this case could not be considered to be "wholly within a period of absence on military leave" and chargeable to military leave.

Accordingly, we conclude that the Arbitrator's award is contrary to 5 U.S.C. § 6323(a), as interpreted and applied by the Comptroller General, and must be set aside. See, for example, U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut and National Association of Government Employees, Local R1-109, 37 FLRA 111, 117 (1990). Further, we will direct the Agency to credit each grievant's military leave account with 1 day of military leave.

V. Decision

The Arbitrator's award is set aside. The Agency is directed to credit each grievant's military leave account with 1 day of military leave.

APPENDIX

The text of section 6323(a) of title 5 provides in relevant part:

§ 6323. Military leave; Reserves and National Guardsmen

(a)(1) Subject to paragraph (2) of this subsection, an employee as defined by section 2105 of this title . . . , permanent or temporary indefinite, is entitled to leave without loss in pay, time, or performance or efficiency rating for active duty engaging in field or coast defense training under sections 502-505 of title 32 as a Reserve of the armed forces or member of the National Guard. Leave under this subsection accrues for an employee or individual at the rate of 15 days per fiscal year and, to the extent that it is not used in a fiscal year, accumulates for use in the succeeding fiscal year until it totals 15 days at the beginning of a fiscal year.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1.   Based on the record, it is clear that the Union's reference to "two non-workdays" is inadvertent and should be construed as "two workdays."

2. The text of relevant portions of 5 U.S.C. § 6323(a) is found in the Appendix to this decision.

3. In his decision, the Comptroller General discussed the relationship between military leave and nonworkdays. The Comptroller General explained that where a nonworkday was not wholly within an employee's period of absence from his civilian employment on military duty, it would not be charged to military leave:

For example, Saturday being a non-workday, an employee would not be charged with military leave because he attended a drill or engaged in certain military exercises while not required to work on that day. But if his military duties required him to be absent from his civilian employment from Wednesday through the second following Wednesday, inclusive, he would be charged with fifteen days' military leave, on a calendar day basis, notwithstanding that Saturdays and Sundays falling within such period were so-called non-workdays. Likewise, Saturday and Sunday being non-workdays, an employee absent Monday on mil