U.S. Department of Veterans Affairs, Central Texas Veterans Health Care Systems, Waco Integrated Clinical Facility and American Federation of Government Employees, Local 1822

[ v55 p626 ]

55 FLRA No. 104

U.S. DEPARTMENT OF VETERANS AFFAIRS
CENTRAL TEXAS VETERANS
HEALTH CARE SYSTEMS
WACO INTEGRATED CLINICAL FACILITY
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1822
(Union)

0-AR-3089

_____

DECISION

July 16, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Chair Segal for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Ed W. Bankston 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 Regulations. The Union did not file an opposition.

      The Arbitrator found that the grievance was timely filed, and that the Agency improperly denied the grievant's request to carry over 48 hours of annual leave. Accordingly, the Arbitrator directed that the grievant's 48 hours of annual leave be restored.

      For the reasons that follow, we conclude that the Agency has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II.     Background and Arbitrator's Award

      In November 1996, the Agency approved the grievant's request for annual leave for the period of December 16 through December 27, 1996. Subsequently, the grievant and his supervisor mutually decided that the leave should be rescheduled due to the amount of work the grievant needed to complete before the end of the year. The grievant later requested authorization to carry over 48 hours of annual leave.

      The grievant's first-line and second-line supervisors both approved the request to carry over leave. However, the Acting Medical Director denied the grievant's request, resulting in forfeiture of the leave.

      The Union filed a grievance, which was submitted to arbitration. The Arbitrator framed the issues as follows:

1.     Whether the grievance was timely filed and therefore arbitrable?

2.     If arbitrable, whether the grievant is entitled to carry-over annual leave in the amount of 48 hours?

Id. at 4.

      The Arbitrator found that under either Article 8 or Article 9 of the parties' interim Memorandum of Understanding (interim MOU), the grievance was timely filed. [n1] 

      With regard to the merits of the grievance, the Arbitrator determined that the Agency's "treatment of [the] grievant's request for carry over leave [was] . . . irregular and nonconforming to Agency policy and regulations, and necessarily therefore, [was] in violation of the Agreement." Id. at 24. [n2]  In assessing the Agency's purported reasons for denying the grievant's request, the Arbitrator reviewed 5 U.S.C. § 6304(d)(1), MP-5 Part 1 Chapter 630(e)(2), and CTVHCS Memorandum 05-016-96 and found that "[n]owhere in the [parties'] Agreement, nor the rules and regulations," is it required that a request for either cancellation of leave or scheduling of carry over leave be initiated wholly by management. Id. at 16. Consequently, the Arbitrator rejected the Agency's contention that it properly denied the grievant's request because it was "voluntary" rather than "mandated." Id. [ v55 p627 ]

      Additionally, the Arbitrator determined that "nothing in the [parties'] Agreement, nor the rules and regulations, requir[es] that . . . the scheduled leave be canceled," and that although MP-5 Part 1 Chapter 630(e)(2) requires that annual leave must be scheduled for use in writing, "[c]ancellation is nowhere addressed" in either MP-5 Part 1 Chapter 630(e)(2) or CTVHCS Memorandum 05-016-96. Id. at 18. Thus, the Arbitrator rejected the Agency's assertion that it properly denied the grievant's request because the leave was not "officially" canceled. Id. at 17.

      The Arbitrator concluded that the grievant's request for carry over leave complied with the requirements set forth in the regulations and the parties' agreement because: (1) the request to schedule the initial annual leave had been timely made in writing; (2) the request for carry over leave was documented and approved by the grievant's supervisors, although the ongoing nature of the exigency made it impossible to document the exigency's ending date; and (3) there was no reasonable alternative to cancellation of the initially-scheduled leave because the grievant's work activity was approximately double that of his colleagues, and the grievant's supervisors would have been unable to provide complete coverage had the grievant taken that initially-scheduled leave.

      The Arbitrator sustained the grievance, and directed that the grievant's 48 hours of annual leave be restored.

III.     Positions of the Parties

A.     Agency

      The Agency argues that the award fails to draw its essence from the parties' agreement because the grievance was not timely filed. In this regard, the Agency contends that the Arbitrator relied on the parties' "new" Master Agreement, rather than the parties' interim MOU, despite the "clear language of the new Master Agreement" indicating that it did not become effective until March 21, 1997. Exceptions at 6.

      According to the Agency, the award is contrary to 5 U.S.C. § 6304(d)(1). In this connection, the Agency notes that the grievant testified that he considered it administrative error that the acting director took so long to reach a final decision. The Agency asserts that administrative error is relevant only if the employee is without fault for being in the position of requesting carry over leave. The Agency alleges that the grievant is not without fault for a variety of reasons. Additionally, the Agency maintains that no public exigency existed, because the Acting Director properly concluded that there was a reasonable alternative to cancellation. The Agency cites, in this regard, the fact that the grievant's second line supervisor informed the Acting Director that he would have been able to provide coverage had the grievant taken his leave as initially scheduled.

      Citing 5 C.F.R. 630.305, [n3]  the Agency contends that the award is contrary to a Government-wide regulation. The Agency claims, in this respect, that only the medical center director is authorized to declare an exigency and to restore annual leave. According to the Agency, as the award essentially permits the grievant to determine whether an exigency exists, the award conflicts with a Government-wide regulation.

      The Agency maintains that the award conflicts, in three respects, with a governing Agency-wide regulation, MP-5 Part 1 Chapter 630(e)(2), which the Agency contends is based on 5 U.S.C. § 6304 and 5 C.F.R. 630.308(a). First, the Agency asserts that the grievant failed to meet the regulation's procedural requirements because his cancellation of scheduled leave and his request for carry over leave were untimely, he was unable to demonstrate that he requested the leave in writing, and he failed to show the Acting Director any indication of his caseload. Second, the Agency asserts, for the same reasons discussed in connection with 5 U.S.C. § 6304(d)(1), that there was no exigency of the public business. Third, the Agency contends that the award is inconsistent with MP-5 Part 1 Chapter 630(e)(2) because the award permits the employee, rather than the Acting Director, to determine whether an exigency exists.

B.     Union

      The Union did not file an opposition.

IV.     Analysis and Conclusions

A.     The Arbitrator did not err in finding that the grievance was timely filed.

      The Authority has consistently held that an arbitrator's determination that a grievance was timely filed constitutes a determination that the grievance is procedurally arbitrable. See American Federation of Government Employees, Local 1399 and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, 54 FLRA 1143, 1151 (1998); U.S. Department of Agriculture, Food Safety and Quality Service and National Joint Council of Food Inspection Locals, AFGE, AFL-CIO, 6 FLRA 278, 279-80 (1981). [ v55 p628 ] An arbitrator's determination of the procedural arbitrability of a grievance is subject to challenge only on grounds other than those that directly challenge the procedural arbitrability determination. See American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army & Air Force Exchange Service, Dallas, Texas, 50 FLRA 184, 185-86 (1995).

      Before the Arbitrator, the Agency argued that the grievance was untimely, on the same grounds as those argued here. As the Agency does not challenge the Arbitrator's procedural arbitrability determination on any grounds other than that determination itself, the exception does not provide a basis for finding the award deficient. Accordingly, we deny the exception.

B.     The award is not contrary to law.

      The Agency asserts that the award is contrary to statute (5 U.S.C. § 6304(d)(1)), Government-wide regulation (5 C.F.R. § 630.305), and Agency-wide regulation (MP-5 Part 1 Chapter 360(e)(2)). As these assertions constitute arguments that the award is contrary to law, we review the questions of law raised by these assertions and the Arbitrator's award de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, we assess whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the arbitrator's underlying factual findings. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998) (Army Research). In making that assessment, we defer to the Arbitrator's underlying factual findings. See id.

1.     The award is not contrary to law, 5 U.S.C. § 6304(d)(1)(A) or (B).

      The Agency argues that the award is contrary to 5 U.S.C. § 6304(d)(1). Although the Agency quotes 6304(d)(1)(A), (B), and (C), its arguments pertain only to 6304(d)(1)(A) and (B). Accordingly, we construe the Agency's exception as alleging that the award is contrary to 5 U.S.C. § 6304(d)(1)(A) and (B).

      With regard to section 6304(d)(1)(A), the Agency contends that the delay in processing the grievant's request did not constitute administrative error within the meaning of that section. However, the Arbitrator did not determine that administrative error had occurred. Rather, the Arbitrator found that the grievant was entitled to carry over leave based on section 6304(d)(1)(B), and he based his award on a finding that exigencies of the public business existed, within the meaning of that section. Restoration of annual leave is not limited to situations where administrative error has occurred; restoration is also available in cases where an exigency of the public business exists. Accordingly, the Agency's exception does not provide a basis for finding that the award conflicts with 5 U.S.C. § 6304(d)(1)(A).

      With regard to section 6304(d)(1)(B), the Agency argues that there was a reasonable alternative to cancellation of the grievant's leave, and that, as such, there was no exigency of the public business. In this connection, the Agency cites the fact that the second line supervisor informed the Acting Director that he would have been able to provide coverage had the grievant taken the leave as requested. However, the Arbitrator found that the incident was a "one-sided conversation" with the second line supervisor "dutifully acquiescent to [the Acting Director's] demands." Award at 22. Citing testimony and documentary evidence, the Arbitrator found that the grievant's "patient load would not have been covered had he taken the leave as scheduled." Id. We defer to the Arbitrator's factual findings in this regard, see Army Research, 53 FLRA at 1710, and these factual findings support the conclusion that there was no reasonable alternative to cancellation of the grievant's leave -- i.e., that there was an exigency within the meaning of 5 U.S.C. § 6304(d)(1)(B). Accordingly, the Agency's exception does not provide a basis for finding that the award conflicts with 5 U.S.C. § 6304(d)(1)(B).

      As the Agency's exception does not demonstrate that the award conflicts with 5 U.S.C. § 6304(d)(1)(A) or (B), we deny the exception.

2.     The award is not contrary to Government-wide regulation, 5 C.F.R. § 630.305.

      The Agency argues that the award places the determination as to whether there is a public exigency, and whether leave can be canceled and rescheduled, in the hands of the grievant, who is not authorized to make such a determination under 5 C.F.R. § 630.305. However, the Arbitrator did not find that the grievant had the authority to officially declare a public exigency, or to personally make the ultimate determination as to whether his own leave would be carried over. Rather, the Arbitrator found that the treatment of the grievant's request for carry over leave by the officials responsible for the determination was "irregular and nonconforming to Agency policy and regulations[,]" and he sustained the grievance on that basis. [n4]  Award at 24. Accordingly, the Agency's exception does not provide a basis for finding the award deficient, and we deny the exception. [ v55 p629 ]

3.     The award is not contrary to an Agency-wide regulation, MP-5 Part 1 Chapter 630(e)(2).

      An award is deficient if it is inconsistent with a "governing" agency regulation. 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, 192 (1990). Although collective bargaining agreements, rather than agency-wide regulations, govern the disposition of matters to which they both apply, see, e.g., U.S. Department of the Air Force, Seymour Johnson Air Force Base, North Carolina and National Association of Government Employees, Local R5-188, 55 FLRA 163, 165-66 (1999), there is no contention that the parties' agreement governs this dispute.

      The Agency contends that Agency-wide regulation MP-5 Part 1 Chapter 630(e)(2) "is based on 5 U.S.C. § 6304 and 5 C.F.R. § 630.308(a)." Exceptions at 9. According to the Agency, MP-5 Part 1 Chapter 630(e)(2) requires that "th[e] annual leave be scheduled for use, in writing, before the start of the third biweekly pay period prior to the end of the year." Id. (emphasis added). However, that regulation does not require that the cancellation of such leave be in writing, or that leave must be canceled within any particular time frame. Additionally, the regulation only requires that the initial leave be scheduled in writing; it does not impose requirements on the scheduling of carry over leave. As such, the Agency's arguments that the cancellation of the grievant's leave and request for carry over leave did not comport with the procedural requirements of MP-5 Part 1 Chapter 630(e)(2) do not provide a basis for finding the award deficient.

      Additionally, the Agency asserts that the award is contrary to the Agency regulation because there was a reasonable alternative to canceling the grievant's leave, and hence no public exigency warranted cancellation. For the same reasons discussed in connection with 5 U.S.C. § 6304(d)(1)(B), we reject the Agency's arguments here.

      Finally, the Agency maintains that the award is inconsistent with the Agency regulation because the award "leaves the determination as to the extent of the exigency up to the employee rather than placing the decision in the proper place[.]" Exceptions at 10. This exception is identical to the Agency's exception asserting that the award is contrary to 5 C.F.R. § 630.305. As discussed above, the Agency mischaracterizes the Arbitrator's reasoning, and the Agency's exception does not provide a basis for finding the award deficient.

      For the foregoing reasons, we deny this exception.

V.     Decision

      The Agency's exceptions are denied.


Appendix

5 U.S.C. § 6304(d)(1) provides, in pertinent part:

Annual leave which is lost by operation of this section because of --

(A)     administrative error . . .; [or]

(B)     exigencies of the public business when the annual leave was scheduled in advance; or

(C)     sickness of the employee when the annual leave was scheduled in advance;

shall be restored to the employee.

5 C.F.R. § 630.305 provides the following:

Before annual leave may be restored under 5 U.S.C. 6304, the determination that an exigency is of major importance and that therefore annual leave may not be used by employees to avoid forfeiture must be made by the head of the agency or someone designated to act for him or her on this matter. Except where made by the head of the agency, the determination may not be made by any official whose leave would be affected by the decision.

MP-5 Part 1 Chapter 630(e)(2) provides, in pertinent part:

Even with the best planning and scheduling of annual leave usage throughout the year, operational demands may not permit usage to avoid forfeiture of leave by some employees. The exigency, whether anticipated or unanticipated, must be of such importance to preclude the use of scheduled annual leave. It should be a case where there is no reasonable alterative to the cancellation of the scheduled leave. There is a requirement that this annual leave be scheduled for use, in writing, before the start of the third biweekly pay period prior to the end of the year. Normally, the decision to cancel scheduled annual leave because of exi- [ v55 p630 ] gencies should be made in advance unless a bonafide emergency precludes an advance decision.

Award at 15-16 and Exceptions at 9.

CTVHCS Memorandum 05-016-96 provides, in pertinent part:

The normal rule that requires annual leave in excess of the maximum permissible carry-over amount be automatically forfeited at the end of the leave year may be suspended and that excess leave restored to a separate leave account for future use under the following conditions:

(1)     Administrative error.

(2)     Exigencies of public business.

(3)     Sickness

Award at 16.

Article 2, Section 1 of the parties' agreement provides, in pertinent part:

In the administration of all matters covered by this Agreement, officials and employees shall be governed by applicable Federal statutes. They will also be governed by Governmentwide regulations in existence at the time this Agreement was approved.

Award at 4.

Article 32 of the parties' agreement provides, in pertinent part:

Section 1 - General

A.     Employees will accrue and use sick and annual leave in accordance with applicable statutes, OPM regulations, and this Agreement.

Section 2 - Annual Leave

B.     The use of accrued leave is an absolute right of the employee, subject to the right of management to approve when leave may be taken.

C.     Management will render timely decisions on employees' leave requests. Employees should submit requests as far in advance as possible.

. . . .

G.     Carryover (restored) leave will be addressed in accordance with applicable rules and regulations.

Award at 4-5.

Article 8 of the interim MOU provides, in pertinent part, that "[a]ny local unit embodied in the [Union's] consolidated unit, which was not covered by a grievance procedure with final and binding arbitration at the time of certification, will be covered by the grievance and arbitration procedures found in Appendix A to this agreement." Attachment B at 4 to Exceptions. The referenced grievance and arbitration procedures provide, in pertinent part, that "[t]he grievance may be submitted orally or in writing within 15 workdays from the date of the act or occurrence[.]" Id. at 8.

Article 9 of the interim MOU provides, in pertinent part:

If either party to this agreement believes there is a dispute over the interpretation or application of this agreement, that party shall notify the other party of the nature of the dispute of the act or occurrence and attempt a mutually agreed-upon resolution. Absent such a resolution, either party may request arbitration within the 30-day period.

Attachment B at 4 to Exceptions.






Footnote # 1 for 55 FLRA No. 104

   The pertinent portions of those provisions can be found in the appendix to this decision.


Footnote # 2 for 55 FLRA No. 104

   The Arbitrator makes several references to requirements of "the rules and regulations" without specifying the rules and/ or regulations. See, e.g., Award at 16, 18. At various points in the award, the Arbitrator cites and discusses the following: 5 U.S.C. § 6304(d)(1)(A) and (B); an Agency-wide regulation