53:0055(12)CA - - Justice, Federal Bureau of Prisons, U.S. Penitentiary and AFGE Local 2343 - - 1997 FLRAdec CA - - v53 p55
[ v53 p55 ]
The decision of the Authority follows:
53 FLRA No. 12
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
June 26, 1997
Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel and the Charging Party.(1) The Respondent filed an opposition to the exceptions.
The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to comply with an Arbitrator's award.(2) The Judge concluded that the Respondent did not violate the Statute as alleged, and recommended that the complaint be dismissed.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's conclusions and recommended order, for the reasons discussed below. Accordingly, we dismiss the complaint.
II. Background and Judge's Decision
A. Arbitrator's Award
An employee asked to use part of his accumulated sick leave in lieu of annual leave in order to care for an ill family member. The request was denied, and the resulting grievance was filed.
The Arbitrator's award, dated December 7, 1994, denied the grievance on the basis of the relevant collective bargaining agreement, law and Agency rules and regulations existing at the time. However, the Arbitrator noted that the collective bargaining agreement provided that the parties would be bound by any future laws and regulations, and that the Office of Personnel Management (OPM) had published proposed regulations on May 11, 1994, to amend the Federal regulations on granting sick leave, 5 C.F.R. § 630.401. Included was a proposed regulation that would permit a limited amount of sick leave to be used for the care of a parent.
The Arbitrator provided in her opinion that if the revision in the rules covering use of sick leave for family care proposed by OPM on May 11, 1994, becomes effective during the leave year when the Grievant was absent due to his father's illness and death, he is entitled to make whatever substitution of sick leave for annual leave the rule revision permits[.]
Award at 11. The Arbitrator retained jurisdiction for 60 days until February 6, 1995, "to resolve any dispute that may arise between the parties in connection with implementation" of the award. Id.
B. The Family Friendly Leave Act and OPM's Sick Leave Regulations
The Federal Employees Family Friendly Leave Act (FFLA) was approved October 22, 1994, to be effective December 22, 1994. P.L. 103-388. It contains provisions permitting Federal employees to use sick leave to care for ill family members.
OPM issued final regulations on the use and recredit of sick leave for Federal employees on December 2, 1994.(3) 59 Fed. Reg. 62,266 (1994). OPM determined that the regulations, "consistent with the recently enacted Federal Employees Family Friendly Leave Act, . . . should be made effective immediately under the regulatory authority granted to OPM by the current sick leave statute[.]" Id. Among other things, the regulations covered use of sick leave to care for family members. In comments accompanying the regulations, OPM stated that it did "not believe it . . . feasible to give this change retroactive effect[,]" which would have, in its view, created inequities for employees who did not benefit from the change and caused administrative problems because of the difficulty of identifying all employees who were adversely affected and of reconstructing affected employees' sick leave records. Id. at 62,269.
After the final regulations issued, the Respondent notified the Charging Party twice that the proposed regulations, previously published on May 11, 1994, had not become effective because they had been superseded by the FFLA, which did not provide for retroactivity.
C. Judge's Decision
The Judge found that the proposed sick leave regulations, referred to by the Arbitrator in her award, never became effective because they were superseded by the FFLA. The Judge noted that OPM had determined that regulatory provisions consistent with the entitlement provided by the FFLA "should be made effective immediately[.]" Judge's Decision at 9, quoting 59 Fed. Reg. At 62,266. Therefore, he found that the regulations, which went into effect December 2, 1994, were promulgated pursuant to the FFLA, even though the FFLA itself did not become effective until December 22, 1994. The Judge also stated that "there was no retroactivity [in the FFLA] and no substitution of sick leave for annual leave previously used for the care of a sick family member was permitted [by the FFLA]." Id. at 4 (emphasis in original). Consequently, the Judge found that the condition precedent to the substitution of sick leave for annual leave provided by the award had not occurred and that, therefore, the Respondent was in full compliance with the award. In addition, the Judge observed that the Respondent had notified the Charging Party of its position twice during the time when the Arbitrator retained jurisdiction and any dispute concerning the meaning of the award could have been submitted to the Arbitrator.
Based on the foregoing reasons, the Judge dismissed the complaint.
III. Positions of the Parties
A. General Counsel's Exceptions
The General Counsel contends, contrary to the Judge, that the OPM-proposed regulations of May 11, 1994, became effective by virtue of OPM's promulgation of final regulations concerning 5 C.F.R. § 630.401 in the December 2, 1994, Federal Register. The General Counsel points out that notice of the final regulations specifically referenced the May 11, 1994, proposed regulation and summarized the public comments received on the proposed regulatory change. The General Counsel asserts that, although there are differences between the May 11 proposed rule and December 2 final rule, it does not change "the undeniable fact that the May 11 proposed rule and December 2 final rule are inextricably linked together." Exceptions at 5. The General Counsel adds that "[t]o hold that the final rule must be identical to the proposed rule would render the publication and public comment provisions of 5 U.S.C. § 553 [the Administrative Procedures Act section on rulemaking] to be useless and wholly extraneous provisions."(4) Id. at n.3. The General Counsel also excepts to the Judge's finding that statutory enactments, "collectively and individually, bar retroactive substitution of sick leave for annual leave . . . ." Judge's Decision at 5.
The General Counsel argues that the Judge's finding that the Respondent cannot be required to allow substitution of sick leave for annual leave because it is not permitted by the Act is "an impermissible collateral attack on the merits of [the Arbitrator's] substitution order." Exceptions at 6. The General Counsel argues that the only issue to be resolved in this proceeding is whether there has been compliance with the award. If no exceptions are filed under section 7122(a), argues the General Counsel, the award becomes final and binding and the agency has no alternative but to comply. The General Counsel states:
An ALJ has no authority at all to excuse an agency from complying with a final and binding award on the ground that the award [is] inconsistent with law, rule or regulation. When an agency fails to comply with a final and binding award, despite the merits of the award, it violates section 7116(a)(1) and (8) of the Statute.
B. Respondent's Opposition to Exceptions
The Respondent asserts that "the General Counsel lacked jurisdiction to pursue an unfair labor practice alleging a failure to abide by [the Arbitrator's] decision" because "the award was not a 'final and binding' decision" within the meaning of section 7122(b) of the Statute. Opposition at 12. We construe this argument as a claim that the unfair labor practice allegation is in the nature of an interlocutory appeal, which the Authority ordinarily will not consider under section 2429.11 of the Authority's Regulations.
The Respondent also argues that the Judge correctly determined that the revision proposed by OPM on May 11, 1994, never became effective. In support of its position, the Respondent contends that the intervening passage of the FFLA was the basis for the December 2, 1994, "final" version of 5 C.F.R. § 630.401. Id. at 7. Moreover, the Respondent asserts that both versions are silent as to retroactivity.
Finally, in response to the General Counsel's contention that the Respondent is engaging in an impermissible collateral attack on the Arbitrator's award, the Respondent argues that there is nothing in the award that required it to file exceptions to the award with the Authority, "because the provision which the Union was pointing to never became 'final.'" Id. at 11.
IV. Analysis and Conclusions
The General Counsel correctly states that the only issue to be decided in an unfair labor practice proceeding to enforce a final and binding arbitration award is whether there has been compliance with the award. See Department of Health and Human Services, Social Security Administration, 41 FLRA 755, 765 (1991) (matters that go to the merits of an award not litigable in unfair labor practice proceeding brought to enforce award), enforced, 976 F.2d 1409 (D.C. Cir. 1992). The Authority's standard for determining whether an agency has complied with a final and binding award is whether the agency's action is consistent with a reasonable construction of the award. United States Department of the Treasury, Internal Revenue Service and United States Department of the Treasury, Internal Revenue Service, Austin Service Center, Austin Texas, 25 FLRA 71, 72 (1987).
A. The Award Is Final and Binding
An Arbitrator's award is final and binding when all the issues submitted for arbitration are completely and unambiguously resolved. American Federation of Government Employees, Local 1923 and Department of Health and Human Services, Health Care Financing Administration, 48 FLRA 1117, 1121 (1993). Contrary to the Respondent's contention, we find that the Arbitrator's decision in this case is final and binding. Thus, unlike U.S. Department of Defense, Dependents Schools and Overseas Education Association, 42 FLRA 1166 (1991), cited by the Respondent, the award in this case was complete at the time it issued. It contained all the elements necessary to determine the entitlements of the grievant, upon the fulfillment or non-fulfillment of an unambiguous express condition: that the proposed revision become effective and, if so, that the grievant be entitled to substitution under that revision.
B. The Respondent's Action Was Reasonable
In determining that the Respondent was in compliance with the award, the Judge did not determine whether the Respondent's construction of the award was reasonable. For this reason, we reject the Judge's rationale. However, for the following reasons, we agree with his conclusion that the complaint must be dismissed.
The record shows that the final regulation incorporated terms of the FFLA. In this regard, OPM stated in comments to the final regulations that "the regulatory provisions [are] consistent with the entitlements provided by the [FFLA.]" 59 Fed. Reg. 62,266 (1994). Relying on these facts, the Respondent reasonably concluded that: (1) the provision providing for the use of sick leave for certain family needs was promulgated pursuant to the FFLA; (2) this provision superseded the proposed regulation referred to by the Arbitrator; and (3) thus, the award's condition that the proposed regulations become effective had not been met.
On the other hand, the final regulation specifically referenced the proposed regulation and summarized the public comments received on that proposed regulation. On that basis, the General Counsel argued that the proposed regulation covering the use of sick leave for family care became effective on December 2, 1994, within the requisite leave year. This is also a reasonable construction of the award, which could support a conclusion that the condition precedent had been met.
We conclude that while the Respondent's construction of the award was not compelled by either the award or the regulation, it was reasonable.(5) Therefore, we find, as concluded by the Judge, that the Respondent has not failed to comply with the award.(6)
The complaint is dismissed.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
|U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
U.S. PENITENTIARY, MARION, ILLINOIS
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2343
Marcus Williams, Esquire
For the Respondent
Patricia S. McMeen, Esquire
For the Charging Party
Peter A. Sutton, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
Statement of the Case
The Complaint in this case, which issued on April 21, 1995, alleged that, ". . . Respondent has failed and refused to comply with Arbitrator Gruenberg's opinion and award . . . ." Respondent admitted that it had refused to allow Mr. Jeffrey Dwyer to substitute 104 hours of sick leave for annual leave used in connection with the hospitalization and death of his father in 1994; but denied that it had failed to comply with Arbitrator Gruenberg's opinion and award. On May 9, 1995, General Counsel filed a Motion for Summary Judgment, pursuant to § 2423.22 of the Authority's Rules and Regulations, 5 C.F.R. § 2423.22, asserting that, "Since there are no material issues of fact in dispute, it is appropriate to dispose of this case under the summary judgement procedures. Department of Veterans Affairs, Medical Center, Chillicothe, Ohio, 44 FLRA 842 (1992)." (Motion, p. 4). On the same day, May 9, 1995, the Regional Director, pursuant to § 2423.22(b)(1) of the Rules and Regulations, 5 C.F.R. § 2423.22(b)(1), referred the Motion to the Chief Administrative Law Judge who, on May 16, 1995, issued an Order To Show Cause whereby Respondent was ordered to show cause, in writing, on or before May 31, 1995, why General Counsel's Motion for Summary Judgment should not be granted; General Counsel and the Charging Party were given leave to file on, or before, June 12, 1995, a response to any timely reply by Respondent; and this case was duly assigned to the undersigned for disposition.
Respondent filed a Response to the Motion for Summary Judgment, dated May 16, 1995, and received on May 17, 1995. Charging Party filed a Response to Respondent's Reply [Response], dated and received June 7, 1995, and General Counsel filed a Response, dated June 12, 1995, and received on June 15, 1995, which have also been carefully considered. Although Respondent requested that General Counsel's Motion For Summary Judgment be denied, Respondent does not assert that there are any material issues of fact in dispute and as an alternative, ". . . seeks resolution of this matter through the submission of legal briefs instead of a hearing." (Respondent's Reply, unnumbered, but the third page). I fully agree that there are no material issues of fact in dispute and, accordingly, will decide this matter on the basis of the Motion, and the attached documents, including: the Charge (Exhibit A); Complaint (Exhibit B); Answer (Exhibit C); Arbitration Opinion and Award, dated December 7, 1994 (Exhibit D); Charging Party's letter dated December 13, 1994, to Mr. James F. Hyland (Exhibit G); Respondent's Memorandum, dated December 16, 1994, with attached Memorandum dated December 12, 1994, from Ms. Regina A. Sullivan (Exhibit H); and Respondent's letter dated January 25, 1995, from Mr. James K. Irvin to Ms. Patricia S. McMeen, Esquire (Exhibit I); together with Respondent's Response, and Charging Party's and General Counsel's Responses to Respondent's Reponse, which constitute the record in this case.
Findings and Conclusions
Employee Jeffrey Dwyer, during the period of January 15, 1994, to April 15, 1994, used 192 hours of accumulated annual leave and advanced annual leave to care for his father during his father's fatal illness and eventual death on April 15, 1994. Mr. Dwyer had requested permission to use a portion of his 420 hours of accumulated sick leave in lieu of annual leave but this request was denied; however, as noted, advanced annual leave was granted. On May 9, 1994, Mr. Dwyer filed a grievance over Respondent's refusal to grant the use of sick leave in lieu of annual leave and, when the dispute could not be resolved, the Charging Party requested arbitration and the Opinion and Award of Arbitrator Gladys W. Gruenberg issued on December 7, 1994.
The Arbitrator denied the grievance, stating in her "Award":
"1. Under the Agreement, law, Agency rules and regulations existing at the time the grievance was filed, the Grievant's request for substitution of sick leave for annual leave is denied." (Exhibit D, p. 11).
However, because Article 3 of the parties' Agreement provided that, ". . . the parties will be bound by any future laws and regulations" and OPM had issued proposed regulations on May 11, 1994, which would permit a limited amount of sick leave to be used for the care, inter alia, of a parent, the Arbitrator further stated in her Award:
"2. "If the revision of sick leave rules proposed by OPM on May 11, 1994, becomes effective during the leave year when the Grievant's absence to care for his father's last illness occurred, then the Agency shall permit the Grievant to substitute for annual leave the number of sick leave days allowable." (Emphasis supplied).
"3. The arbitrator retains jurisdiction of this matter for 60 days, that is, until February 6, 1995, to resolve any dispute that may arise between the parties in connection with implementation of this award." (Exhibit D, p. 11).
1. No Failure To Comply With Award
The short answer to the allegation of the Complaint, that Respondent has failed to comply with the Arbitrator's opinion and award, is that the allegation is wholly unsupported by the record. To be more precise, as Respondent states, the record affirmatively shows that Respondent, ". . . is currently in full compliance with the award . . . ." (Respondent's Response, first page).
As paragraph 16 of the Complaint states, Arbitrator Gruenberg's opinion and award provided,
"If the revision of sick leave rules proposed by OPM on May 11, 1994, becomes effective . . . then the Agency shall permit the Grievant to substitute for annual leave the number of sick leave days allowable." (Emphasis supplied).
The revision of sick leave rules proposed on May 11, 1994, never became effective. Accordingly, paragraph 2 of the Arbitrator's Award never became operative and, as paragraph 1 of the Award had denied the request for substitution of sick leave for annual leave, Respondent was, and is, in full compliance with the Award. Not only is the condition precedent plainly and unambiguously stated in paragraph 2 of the Award, but the Arbitrator further stated in her Opinion,
". . . if the proposed rule change does become effective during the Grievant's 'leave year,' the Grievant would be entitled to a substitution of sick leave . . . If the revision does not become effective until a new leave year begins under the OPM proposed revision, the Grievant would not be entitled to make that substitution." (Exhibit D, p. 9).
OPM's May 11, 1994, proposed revision did not become effective because it was superseded by the "Federal Employees Family Friendly Leave Act," P.L. 103-388, approved October 22, 1994, and effective December 22, 1994 ["This subsection shall be effective during the 3-year period that begins upon the expiration of the 2-month period that begins on the date of the enactment of this subsection." (P.L. 103-388, 108 STAT. 4079, 5 U.S.C.A. § 6307(d)(4)(A)]. To be sure, OPM issued Regulations on December 2, 1994 (Exhibit F) concerning, inter alia, the use of sick leave to care for family members; but these were final regulations under the "recently enacted Federal Employees Family Friendly Leave Act" (Exhibit F, Summary, F.R. p. 62266). Although this regulation was made effective December 2, 1994 (Exhibit F, F.R. pp. 62266, 62270), despite the provision of the Statute, as set forth above, which made the law effective beginning December 22, 1994, nevertheless, as more fully set forth hereinafter, there was no retroactivity and no substitution of sick leave for annual leave previously used for the care of a sick family member was permitted.
2. Respondent Notified Charging Party that OPM's May 11, 1994, Proposal had not Become Effective.
First, by its letter dated December 16, 1994, to Mr. Ronald Beckman, President, Local 2343 (Exhibit H), Respondent advised the Charging Party that OPM's May 11, 1994, proposed regulation had not become effective; that a different proposal had become law (P.L. 103-388); that its effective date was December 2, 1994; and that there was no retroactivity. Second, by its letter dated January 25, 1995, to Ms. McMeen, counsel for the Charging Party (Exhibit I), Respondent again stated, in part, as follows:
"OPM's May 11, 1994 submitted revision did not become effective. Although not addressed in the Award, Public Law 103-388 became effective December 2, 1994. As previously indicated . . . this law was not retroactive. Therefore, the agency has complied fully with Ms. Gruenberg's Opinion and Award." (Exh. I).
Respondent's notification, that OPM's May 11, 1994, proposal had failed, i.e., it would never become effective because it had been superseded by Public Law 103-388, left no doubt whatever that the qualification of the Award, namely, "If the revision of sick leave rules proposed by OPM on May 11, 1994, becomes effective . . . then the Agency shall permit the Grievant to substitute for annual leave the number of sick leave days allowable" (Exhibit D, p. 11) had not come to pass and would never come to pass because Congress had enacted a superseding law. The Arbitrator quite specifically had conditioned the substitution of sick leave on OPM's May 11, 1994, proposed revision becoming effective. The Arbitrator had retained jurisdiction, ". . . until February 6, 1995, to resolve any dispute that may arise . . . . ." (Exhibit D, p. 11) and, if there had been any dispute concerning the Award, it could have been submitted to the Arbitrator. As the Award is clear, unambiguous and directive, the failure of the very specific condition of paragraph 2 of the Award terminated the Award with the denial of the grievance (Exhibit D), paragraph 1, p. 11).
3. Statutory enactments bar retroactive substitution of sick leave
Although the Opinion and Award of the Arbitrator was dated December 7, 1994 (Exhibit D), plainly the Arbitrator gave no consideration to three legislative enactments which, collectively and individually, bar retroactive substitution of sick leave for annual leave used to care for an ill family member.
The first two legislative enactments were riders to the Treasury, Postal Service and General Government Appropriations Act, 1995, P.L. 103-329, September 30, 1994. One concerned leave to permit the recipient to serve as a bone-marrow or organ donor and the other concerned leave for an adoption-related purpose. It is significant that the bone-marrow or organ donor provision was not retroactive; however, the adoption-related provision permitted substitution of sick leave for annual leave used and made the substitution retroactive to October 1, 1991. Section 629 of P.L. 103-329 provided, in relevant part, as follows:
SEC. 629. (a)(1) Subchapter II of chapter 63 of title 5, United States Code, is amended by adding at the end the following:
"§ 6327. Absence in connection with serving as a bone-marrow or organ donor
"(a) An employee in or under an Executive agency is entitled to leave without loss of or reduction in pay, leave to which otherwise entitled, credit for time or service, or performance or efficiency rating, for the time necessary to permit such employee to serve as a bone-marrow or organ donor.
"(b) Not to exceed 7 days of leave may be used under this section by an employee in a calendar year.
"(c) The Office of Personnel Management may prescribe regulations for the administration of this section."(*)
. . .
(b)(1) Section 6307 of title 5, United States Code, is amended--
(A) by redesignating subsection (c) as subsection (d);
(B) by inserting after subsection (b) as the following:
"(c) Sick leave provided by this section may be used for purposes relating to the adoption of a child."; and
(C) in subsection (d) (as so redesignated by subparagraph (A)) by inserting "or for purposes relating to the adoption of a child," after "ailment,".
(2) Section 6129 of title 5, United States Code, is amended by striking "6307 (a) and (c)," and inserting "6307 (a) and (d),".
(3)(A) The Office of Personnel Management shall prescribe regulations under which any employee who used or uses annual leave for an adoption-related purpose, after September 30, 1991, and before the date as to which sick leave first becomes available for such purpose as a result of the enactment of this subsection may, upon appropriate written application, elect to have such employee's leave accounts adjusted to reflect the amount of annual leave and sick leave, respectively, which would remain had sick leave been used instead of all or any portion of the annual leave actually used, as designated by the employee.
. . . ." (102 STAT. 2423-2424)
The third enactment was the Federal Employees Family Friendly Leave Act, P.L. 103-288, 108 STAT. 4079, October 22, 1994, which provided, in relevant part, as follows:
Section 6307 of title 5, United States Code, is amended by adding at the end the following:
. . .
"(d)(2) Subject to paragraph (3) and in addition to any other allowable purpose, sick leave may be used by an employee--
"(A) to give care or otherwise attend to a family member having an illness, injury, or other condition which, if an employee had such condition, would justify the use of sick leave by such an employee; or
"(B) for purposes relating to the death of a family member, including to make arrangements for or attend the funeral of such family member.
"(3)(A) Sick leave may be used by an employee for the purposes provided under paragraph (2) only to the extent the amount used for such purposes does not exceed--
"(I) 40 hours in any year, plus
"(ii) up to an additional 64 hours in any year, but only to the extent the use of such additional hours does not cause the amount of sick leave to the employee's credit to fall below 80 hours.
. . .
"(4)(A) This subsection shall be effective during the 3-year period that begins upon the expiration of the 2-month period that begins on the date of the enactment of this subsection.
. . . ." (108 STAT. 4079-4080)
Final regulations to implement the Federal Employees Family Friendly Leave Act were issued December 2, 1994 (Exhibit F, F.R. pp. 62270-62272).
As noted above, there was no retroactivity of the Statute. To the contrary, the Statute stated, ". . . This subsection shall be effective during the 3 year period that begins on the date of the enactment of this subsection." The date of enactment was October 22, 1994 (108 STAT. 4080) and the effective date would have been December 22, 1994; however, as also noted above, OPM, ". . . determined that regulatory provisions consistent with the entitlement provided by this legislation should be made effective immediately. . . ." (Exhibit F, F.R., p. 62266). Accordingly, OPM's regulations were effective December 2, 1994. There was no retroactivity; there was no authorization for the substitution of sick leave for annual leave previously used for an ill family member, as there was for adoption-related absences. Indeed, the regulations revised Subpart E-Recredit of Leave to remove the 3-year break-in-service limitation on the recredit of sick leave for former employees who are reemployed on, or after, December 2, 1994 (Exhibit F, F.R. pp. 62271-62272; § 630.502); and reestablishment of leave account after military service (Exhibit F, F.R. p. 62272, § 630.504); but there may be no recredit of annual leave except under 5 C.F.R. § 630.501 (when an employee transfers between position