48:1269(135)AR - - Justice, INS, Washington, DC and National INS Council, Local 46, AFGE - - 1993 FLRAdec AR - - v48 p1269



[ v48 p1269 ]
48:1269(135)AR
The decision of the Authority follows:


48 FLRA No. 135

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

WASHINGTON, D.C.

(Agency)

and

NATIONAL IMMIGRATION AND NATURALIZATION

SERVICE COUNCIL, LOCAL 46

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

(Union)

0-AR-2471

_____

DECISION

December 30, 1993

_____

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 Alan Walt filed by the Agency 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 Union filed an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance alleging that the Agency violated the parties' negotiated agreement and applicable regulations by refusing to grant administrative leave to unit employees who were prevented from reporting to work because of a snowstorm. For the following reasons, we conclude that the Agency's exceptions fail to establish that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The Agency has a District Office (DO) located in the Detroit metropolitan area. A major snowstorm hit the Detroit metropolitan area shortly before midnight on January 13, 1992, and continued until about noon on January 14, 1992. On January 14, 1992, the DO opened in the morning and remained open until approximately 2:30 p.m. About one-quarter of the employees assigned to that office reported for duty and serviced the clients scheduled for appointments. The Deputy District Director decided to close the office at 2:30 p.m. when it appeared that no other clients would come to the office. Those unit employees who did not report to work on January 14 because of the weather conditions were charged with either annual leave or leave without pay (LWOP).

Thereafter, the Union filed a grievance on behalf of unit employees who were unable to report for duty because of the inclement weather conditions and who were denied administrative leave. The grievance was not resolved and was submitted to arbitration. The issue before the Arbitrator was:

Did the [Agency] violate the collective bargaining agreement and applicable regulations in refusing to grant administrative leave to any employee in the Detroit District, who, on January 14, 1992, was prevented from reporting for duty due to a snow storm?

Award at 2 (emphasis omitted).

Before the Arbitrator, the Agency argued that the grievance was not arbitrable under Article 47, Section C of the parties' collective bargaining agreement.(1) The Arbitrator rejected the Agency's contention, finding that: (1) the Agency did not raise the arbitrability issue in a timely manner as required by Article 47, Section F of the parties' agreement; and (2) the grievance was properly filed as a Union grievance under Article 47, Section B of the parties' agreement.

As to the merits, the Arbitrator found that the undisputed evidence disclosed the existence of "severely inclement weather conditions on January 14, 1992." Id. at 12. The Arbitrator stated that no basis existed to dispute the testimony of witnesses that the heavy snowfall on that date accompanied by high winds prevented certain employees from reporting to work. The Arbitrator further stated that it was clear that the Agency recognized the snowstorm as a valid reason for granting annual leave or LWOP, thereby excusing the absences. The question remaining for the Arbitrator was whether the absences resulting from the inclement weather conditions entitled the affected employees to administrative leave rather than annual leave or LWOP. The Arbitrator noted the Agency's contention "that only in those circumstances where a [DO] is closed can administrative leave be authorized." Id.

The Arbitrator found that Article 47 of the parties' contract addressed the use of administrative leave in other than emergency situations. The Arbitrator found that although "the contractual provision [did] not speak to emergency situations which [could] or might justify the application of administrative leave[]," the Agency's regulations did address those situations. Id. at 13. Specifically, the Arbitrator noted that paragraph 2224.23h(1) of the Agency's Administrative Manual (ADM) prescribes the circumstances in which an installation head may exercise discretion in granting administrative leave.(2) The Arbitrator determined that because the Agency regulation was not in conflict with the parties' agreement, the regulation was "controlling here." Id. at 14.

The Arbitrator next found that the Agency regulation providing for administrative leave applied not only to circumstances when emergency conditions may force the closure of a facility, but also extended to situations when "'employees are deterred in or prevented from reaching their work places because of conditions which disrupt public or private transportation, or other emergency conditions.'" Id. (quoting ADM paragraph 2224.23h(1)). The Arbitrator also noted the definition of the phrase "emergency situations" set forth in Federal Personnel Manual (FPM) chapter 610, subchapter 3.(3) Further, the Arbitrator examined Department of Justice (DOJ) Order 1630.1, chapter 4, paragraph 20a(5) and found that this regulation recognizes "'severe weather'" as a situation which may "'prevent large numbers of employees from getting to work, or may necessitate closing of Federal activities.'" Id. at 15.

The Arbitrator determined that the Agency was incorrect in concluding that the Agency regulations authorize the grant of administrative leave only in those circumstances where an installation has been closed. The Arbitrator found that under the Agency's regulations, apart from the closing of an installation, in situations where "'employees are deterred in or prevented from reaching their work places because of conditions which disrupt public or private transportation[,]'" an installation head has discretion to excuse employees from duty "'without charge to leave or loss of pay . . . ." Id. (quoting, in part, ADM paragraph 2224.23h(1)).

According to the Arbitrator, under the Agency's regulations, in such situations, management must review the circumstances of each employee's case and determine whether the employee made every reasonable effort to get to work. The Arbitrator found that only about one-quarter of the Agency's employees were able to report for duty on January 14, 1992, and only about one-half of the Agency's clients arrived. Noting these numbers, the Arbitrator found that the "requirement that 'severe weather' must be such as 'may prevent large numbers of employees from getting to work' was met[.]" Id. at 16 (quoting DOJ Order 1630.1, chapter 4, paragraph 20a(5)). The Arbitrator found, therefore, that management "should have proceeded with a 'personal review of the facts in any individual case' to determine whether 'the employee made every reasonable effort to get to work but was unable to do so because of existing conditions.'" Id. (quoting ADM paragraph 2224.23h(1)). The Arbitrator found that the Agency's failure to recognize that the Agency's regulations include management's authority to exercise discretion in situations other than an installation closure resulted in "arbitrary action" in its application of administrative leave under the regulation. Id.

Having considered the evidence, the Arbitrator concluded that the Agency violated the parties' agreement and applicable regulations incorporated in the parties' agreement when it applied only one part of ADM paragraph 2224.23h(1) in determining whether employees prevented from reporting for work should receive administrative leave in lieu of annual leave or LWOP. The Arbitrator directed that: (1) the grievance be returned to management; and (2) "management consider the cases of those employees who claimed they were deterred in or prevented from reaching their work places on January 14, 1992 because of inclement weather." Id. at 17. The Arbitrator further directed the Agency to apply the applicable provisions of the ADM in determining whether any affected employees are entitled to administrative leave.

III. Positions of the Parties

A. The Agency's Exceptions

The Agency contends that the award is deficient because it is contrary to the Agency's regulation, ADM paragraph 2224.23h(1). Although it notes that the Authority defers to the expertise of arbitrators in construing negotiated provisions, the Agency contends that because the Agency regulation is controlling in this case, the Agency's interpretation rather than the Arbitrator's interpretation of that regulation is controlling unless the Agency's interpretation is plainly erroneous or inconsistent with the regulation.

The Agency interprets ADM paragraph 2224.23h(1) to mean that administrative leave for employees who do not report for duty is limited to closure situations. The Agency acknowledges that the regulation provides that unless employees "'have been formally advised that the installation is closed, 'they are expected to make every practicable effort to get to work, and that administrative leave should be granted 'only after personal review of the facts in any individual case has revealed that the employee made every reasonable effort to get to work but was unable to do so because of existing conditions.'" Exceptions at 6. However, the Agency argues that, under the regulations, what constitutes reasonable effort depends on the employee's time of arrival at work. Therefore, according to the Agency, "employees who are tardy reporting to work may be granted administrative leave for their tardiness, but not employees who simply remain at home." Id.

The Agency further contends that its construction of ADM paragraph 2224.23h(1) is consistent with the FPM, a Government-wide regulation. The Agency asserts that the Arbitrator's award is based on an interpretation of the Agency's regulation that allows administrative leave in circumstances not found in FPM chapter 630, subchapter 11 or FPM chapter 610, subchapter 3. The Agency contends, therefore, that the award is deficient because it is contrary to an Agency regulation within the meaning of section 7122(a) of the Statute.

The Agency further asserts that the award is deficient because it directly interferes with management's right to assign work. According to the Agency, an agency's decision to remain open during inclement weather, including its decision as to the type of leave to charge employees, involves a determination as to the need for employees' services and that determination constitutes an exercise of management's right to assign work. The Agency asserts that if an award conditions the assignment of work on an employee's consent, the award directly interferes with management's right to assign work. The Agency also contends that, even if its action is inconsistent with the Agency regulation, the Arbitrator cannot reverse management's exercise of its right to assign work unless the rule or regulation being enforced is found to have the force and effect of law. The Agency asserts that the Agency regulation involved does not have the force and effect of law and, therefore, the Arbitrator's award directly interferes with management's right to assign work.

B. The Union's Opposition

The Union contends that there is no basis for the Agency's assertion that the award is contrary to rule or regulation or that it violates management's right to assign work. The Union asserts that the Agency ignores the plain meaning of its regulation and attempts to cast the dispute as one involving management's right to assign work. The Union contends that the Agency's exceptions, however, constitute nothing more than disagreement with the Arbitrator's decision.

According to the Union, ADM paragraph 2224.23h(1) authorizes administrative leave both in cases of closure and in other situations. The Union asserts that the Arbitrator merely interpreted the language in the regulation based on its plain meaning. The Union contends that the Arbitrator did not state that the Agency must grant administrative leave, or that the Agency could not assign work to employees. Rather, according to the Union, the Arbitrator stated that the Agency "must consider" employees' requests for administrative leave based on the language of the regulation. Opposition at 3 (emphasis in original). The Union asserts that this determination does not interfere with the Agency's discretion. In addition, the Union asserts that both the Agency regulation and the FPM grant the Agency broad discretion in the granting of administrative leave.

The Union also disagrees with the Agency's contention that only it can interpret its regulations. The Union asserts that the Agency's interpretation of its regulations is subject to the negotiated grievance procedure.

IV. Analysis and Conclusions

A. Administrative Manual Paragraph 2224.23h(1) and the FPM

Absent circumstances not relevant in this case, an arbitration award that conflicts with a governing agency rule or regulation will be found deficient under section 7122(a)(1) of the Statute. U.S. Department of the Treasury, Internal Revenue Service, Ogden Service Center, Ogden, Utah and National Treasury Employees Union, Chapter 67, 42 FLRA 1034, 1056 (1991) (citing U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186 (1990)). Moreover, arbitrators have authority to interpret and enforce agency regulations. American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Command, Tinker Air Force Base, Oklahoma, 47 FLRA 735, 740 (1993) (Tinker).

We are not persuaded by the Agency's contention that the award is contrary to the Agency's regulation, ADM paragraph 2224.23h(1). Based on the wording of the regulation, the definition of emergency situations set forth in the FPM, and DOJ Order 1630.1, chapter 4, paragraph 20a(5), the Arbitrator found that in situations where "'employees are deterred in or prevented from reaching their work places because of conditions which disrupt public or private transportation[,]'" an installation head has discretion to excuse employees from duty "'without charge to leave or loss of pay . . . ." Award at 15 (quoting ADM paragraph 2224.23h(1)). The Arbitrator further found that the requirements of the applicable regulations were met and, therefore, management should have proceeded with a "'personal review of the facts in any individual case' to determine whether 'the employee made every reasonable effort to get to work but was unable to do so because of existing conditions.'" Id. at 16 (quoting DOJ Order 1630.1, chapter 4, paragraph 20a(5) and ADM paragraph 2224.23h(1)).

Based on the plain wording of ADM paragraph 2224.23h(1), we find that the Agency has not demonstrated that the Arbitrator improperly determined that the Agency's interpretation of ADM paragraph 2224.23h(1) is inconsistent with the terms of that regulation. Specifically, we find that the Agency has not demonstrated that the Arbitrator erred in determining that, by its terms, ADM paragraph 2224.23h(1) affords the Agency discretion to grant administrative leave to employees who do not report for duty in situations other than an installation closure and that the Agency's interpretation of the regulation was inconsistent with those plain terms. See, for example, Tinker, 47 FLRA at 740-41; U.S. Department of Veterans Affairs, Medical Center, Atlanta, Georgia and National Federation of Federal Employees, Local 2102, 44 FLRA 427 (1992), reconsideration denied, 44 FLRA 950 (1992).

Also, we find that the Agency has not demonstrated that the Arbitrator erred by rejecting its interpretation of the regulation. "An agency's interpretation of . . . its own regulations is usually entitled to deference, but there are limits on when and how far a court should defer to the agency." Shepherd v. Merit Systems Protection Board, 652 F.2d 1040, 1043 (D.C. Cir. 1981) (Shepherd). The court "must overturn agency action and interpretation inconsistent with the regulations . . . themselves." Id. See also, Union of Concerned Scientists v. Nuclear Regulatory Commission, 711 F.2d 370, 381 (D.C. Cir. 1983). Because the Arbitrator determined that the Agency's interpretation of the regulation was inconsistent with the plain wording of the regulation, we find that the Agency's contention that its interpretation of the regulation should be controlling in this case provides no basis for finding the award deficient. See, for example, Shepherd, 652 F.2d at 1043.

Further, we find that the Agency has not demonstrated that, interpreting the Agency's regulations in terms of the FPM provisions relied on by the Agency, the Arbitrator's award is deficient. In particular, FPM chapter 610, subchapter 3 concerns group dismissal or closure for emergency situations, including the administration of employee leave requests, and FPM chapter 630, subchapter 11 concerns excused absences. These FPM provisions provide guidance to agencies concerning, among other things, excused absences or administrative leave and the exercise of agencies' discretion in the administration of leave and the handling of employee leave requests. They do not prescribe mandatory requirements governing the grant of administrative leave. Although the provisions provide examples of situations where a grant of administrative leave is appropriate, nothing in the provisions prevents the Agency from determining in its internal regulations that there are other situations under which it will grant an employee's request for administrative leave. Compare International Organization of Masters, Mates and Pilots and U.S. Department of the Navy, Chief of Naval Operations, Washington, D.C., 47 FLRA 218 (1993) (proposal that would allow employees to exchange overtime payment for administrative leave found inconsistent with FPM chapter 630, subchapter 11). Accordingly, we find that this contention provides no basis for finding the award deficient.

B. The Right to Assign Work under Section 7106(a)(2)(B) of the Statute

The Arbitrator directed that: (1) the grievance be returned to management; and (2) "management consider the cases of those employees [denied administrative leave] who claimed they were deterred in or prevented from reaching their work places on January 14, 1992 because of inclement weather" in accordance with the applicable provisions of the ADM. Award at 17.

We reject the Agency's contention that the award conflicts with the Agency's right to assign work. Nothing in the award requires the Agency to grant administrative leave. The Arbitrator directed only that the Agency consider the cases of those employees denied administrative leave in accordance with the requirements of the Agency regulation.(4) Thus, the award neither prohibits the Agency from denying, nor requires the Agency to grant, employees' requests for administrative leave. Accordingly, we conclude that this exception does not provide a basis for finding the award deficient.

V. Decision

The Agency's exceptions are denied.

APPENDIX

Article 47 provides in pertinent part:

ARTICLE 47 - Grievance Procedure

. . . .

B. Definition - A grievance means a complaint either by a unit employee concerning his conditions of employment, or by the Union in its own behalf or concerning conditions of employment of any employee. Unless excluded below, such a complaint may concern the adverse impact of:

(1) the effect of interpretation, or claim of breach of this master Agreement, or other written agreement between the parties; or

(2) any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment.

. . . .

C. In the case of an identical grievance involving a group of employees, subject to the consent of the employees involved, one employee's grievance shall be selected by the Union for processing. All decisions for that grievance will be binding on the other grievance(s).

. . . .

F. When a written grievance is presented . . . [a] decision will include a statement of any reason the [Agency] may have for believing that the grievance is not grievable or not arbitrable. If the Union . . . elects to proceed to arbitration of the grievance, such grievability/arbitrability questions are to be decided as a threshold issue by the arbitrator who decides the merits of the grievance.

Award at 3-4.

Administrative Manual paragraph 2224.23h(1) provides in pertinent part:

2224.23

h. Conditions Which Prevent or Deter Reporting for Duty

(1) It shall be within the administrative discretion of the head of the installation concerned to determine whether employees will be excused from duty without charge to leave or loss of pay for regular workdays on which the installation or activity remains closed because of emergency conditions, such as fire, explosion, or similar emergencies of a serious nature, or when employees are deterred in or prevented from reaching their work places because of conditions which disrupt public or private transportation, or other emergency conditions. All such excused absences shall be coordinated as far as practicable with the release of employees from other Federal agencies in the vicinity. In administering this policy, it should be kept in mind that unless they have been formally advised that the installation is closed, employees are expected to make every practicable effort to report for work despite emergency conditions which may interfere with normal transportation and that administrative leave should be granted only after personal review of the facts in any individual case has revealed that the employee made every reasonable effort to get to work but was unable to do so because of existing conditions. Otherwise, annual leave will be charged. In determining what constitutes a reasonable effort, the distance and route the employee must travel, his method of transportation, his time of arrival, and the experience of other employees traveling under similar circumstances should be among the factors considered. Employees also are expected to work if conditions at the place of work are fairly

adequate, in the supervisors' judgment, although they may not be normal.

Id. at 6-7.

Emergency situations are defined in FPM chapter 610, subchapter 3, paragraph 3-7c as follows:

c. An emergency situation normally exists where a significant number of employees are prevented from reporting for work on time or where agencies in an area must temporarily shut down part or all of their activities. Area-wide emergencies usually are announced by state or local authorities in public warnings or declarations of an emergency or disaster--e.g., snow warnings, severe icing conditions, floods, earthquakes, hurricanes, air pollution, power failures, or interrup