National Air Traffic Controllers Association and U.S. Department of Transportation, Federal Aviation Administration

[ v55 p765 ]

55 FLRA No. 128

NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION
(Union)

and

U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)

0-AR-3109

_____

DECISION

August 27, 1999

_____

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

Decision by Member Wasserman for the                                                    Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Anthony V. Sinicropi 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 Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator found that the Agency's decision to deny the grievant's request for two weeks of military leave for Reserve inactive duty was not contrary to law. The Arbitrator denied the grievance.

      For the reasons that follow, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

A.     Facts Giving Rise to this Grievance

      The grievant is an Air Traffic Control Specialist at John Wayne Airport Air Traffic Control Tower, in Costa Mesa, California. He is also a Lieutenant Colonel in the U.S. Marine Corps Reserves. On December 3, 1996, the grievant applied for two weeks of military leave for the period of February 16, 1997, through March 1, 1997. [n1]  The Agency denied the grievant's request, basing its refusal upon the fact that some of the grievant's coworkers were scheduled to attend a training class during the second week, from February 23 through March 1. The grievant subsequently applied for, and was granted, annual leave for the first week. The grievant performed drills during that week. [n2] 

      On March 29, 1997, the Union filed a grievance, in which it claimed that the Agency should have granted the grievant's request for two weeks of paid, military leave. As a remedy, the Union requested the following: (1) that the grievant be "monetarily compensated an amount equal to the amount he would have received from the military had he been allowed to perform active duty" during the second week of his requested leave; (2) that the grievant's future requests for military leave be addressed in accordance with FAA Order 3600.4; (3) that the grievant be "compensated in any other manner which may be appropriate in order to make him whole." [n3] 

B.     The Arbitrator's Award

      The parties stipulated to the following issue to be resolved: "[w]as the disapproval of the [g]rievant's military leave request in accordance with applicable laws, rules, and regulations? If not, what is the proper remedy?" [n4]  The Arbitrator noted the parties' additional stipulation that "military leave is not authorized for periods of inactive duty training[.]" Award at 2.

      The parties submitted that Article 26, Section 10 of their Collective Bargaining Agreement ("agreement"), and FAA Absence and Leave Order 3600.4 (November 9, 1970), apply to the dispute. [n5]  In addition, the Arbitrator quoted specific statutes that each party contended were relevant to the dispute: the Agency cited to 5 [ v55 p766 ] U.S.C. § 6323; and the Union cited to 38 U.S.C. §§ 4301, 4311, and 4312. [n6] 

      In resolving the grievance, the Arbitrator stated that he would not decide whether Title 38, cited by the Union, or 5 U.S.C. § 6323, cited by the Agency, govern the Agency's decision not to grant the grievant's request for leave. [n7]  Rather, the Arbitrator stated that "the crucial issue in this case is whether the initial request for leave was for active military service . . . [s]ince the parties stipulated that military leave is not available for inactive military duty, whether the request for military leave was for active or inactive duty becomes the dispositive issue in this case." Id. at 7.

      The Arbitrator then addressed the Union's argument that the grievant had requested leave to perform two weeks of Reserve active duty. On this subject, the Arbitrator noted the testimony of the grievant's commanding officer, who stated that the grievant would have been on a Reserve drill had he been approved for the requested two week period, and that drills are not an appropriate use of military leave. The officer also testified that military orders were not required for the work that the grievant had been scheduled to perform, and that orders were only issued for periods of active duty. Based upon the evidence before him, the Arbitrator concluded that the grievant had been scheduled for inactive duty. Accordingly, the Arbitrator held that "because the [g]rievant was not requesting military leave for a period of active duty, the leave was properly denied." Id. at 8.

      In closing, the Arbitrator addressed the subject of leave for inactive duty. The Arbitrator stated that if the Agency had accommodated the grievant's request "to take annual leave during the [two week] period he requested[,]" the Agency would have had to either reschedule attendance for the training class, schedule overtime, or slow down traffic at the airport. Id. at 8. The Arbitrator reasoned that because "there is no requirement that an employee's request for leave for inactive military duty trump all other obligations to other employees[,]" the Agency was under no duty to grant the request. Id. at 9. The Arbitrator concluded that "the Union has not demonstrated that the denial of the military leave was in violation of applicable laws, rules, or regulations[,]" Id. at 7, and denied the grievance.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union asserts that the award is contrary to law because Title 38, not 5 U.S.C. § 6323, of the U.S. Code governs this dispute. In terms of a remedy, the Union requests that the Authority set aside the award.

      First, the Union states that the standard of review is de novo. Accordingly, the Union asserts that it need not submit additional evidence in order for the Authority to find the award contrary to law. As authority, the Union cites to U.S. Small Business Administration, Washington, D.C. and American Federation of Government Employees, Council 228, Local 2532, 38 FLRA 386, 406 (1990).

      Next, the Union claims that the Arbitrator erroneously asserted that the crucial issue at arbitration was whether the grievant requested leave for active or inactive duty. To the contrary, the Union asserts that the crucial issue is what law should apply. In this regard, the Union states that the parties stipulated that the grievant requested leave for inactive duty, and that Title 38 requires an employer to release employees from employment for periods of inactive duty. In support, the Union cites 38 U.S.C. § 4303(13) ("the performance of duty . . . includes active duty, active duty for training . . . inactive duty for training, inactive duty training . . . " (emphasis added in original)). Exceptions at 2. Also, the Union states that the Arbitrator admitted that he was choosing not to apply Title 38 to the grievance, when he made the statement that he was deciding the case "without an in-depth examination of the legislative history of the respective [c]ode provisions . . . . " Id. (citing Award at 7).

      The Union then claims that the Arbitrator "ignored" the provisions of Title 38 that govern the dispute. Id. at 2-3. In this regard, the Union states that 38 U.S.C. § 4312(a) grants employment rights to any person who is "absent" from a position of employment for less than five years, and that 38 U.S.C. § 4312(e)(1)(A)(i) contemplates military service for less than 31 days. The Union concludes that these sections' use of the term "service in the uniformed services" to refer to employment rights shows that the Arbitrator erroneously decided that Title 38 only applies when [ v55 p767 ] there has been "a break in employment" or "a military conflict." Id. at 2-3 (citing Award at 7). In addition, the Union contends that the Agency violated 38 U.S.C. § 4301's requirement that employers encourage "non-career service in the uniformed services" by "eliminating or minimizing the disadvantages to civilian careers and employment which can result in such services."

      In sum, the Union argues that 5 U.S.C. § 6323 does not apply to the dispute because that section only addresses whether employees may be granted military leave and does not concern whether employees are entitled to any other leave from work in order to perform military service. In this connection, the Union states that "the parties stipulated to the issue of whether the Agency's refusal to allow the employee to attend military services was proper, not whether the grievant had sufficient accumulated military leave to cover these services." Id. at 3. The Union concludes that, in the absence of specific language in the parties' agreement, "Title 38 compels the Agency to release the employee from employment for the period in question." Id.

B.     Agency's Opposition

      First, the Agency states that, pursuant to 5 U.S.C. § 6323, the parties' agreement, and the Agency's regulations, military leave is not granted for inactive duty for training. Contrary to the Union's assertion, the Agency claims that the parties did not stipulate that the grievant requested military leave for inactive duty. Rather, "the Union maintained throughout the hearing that the military leave requested by [the grievant] was for active duty." Opposition at 2-3. The Agency contends that "[the grievant's] entire request from February 16 through March 1, 1997 was not appropriate for granting military leave" because the grievant was scheduled to perform Reserve inactive duty. Id. at 2.

      Next, the Agency argues that the Union's exceptions should be denied because the Arbitrator properly resolved the issue before him. On this point, the Agency asserts that the stipulated issue concerned only whether the grievant was entitled to, specifically, "military leave." Id. at 3. Therefore, "[s]ince 5 U.S.C. 6323 is the guiding statute that addresses granting military leave, [the Arbitrator's] use of 5 U.S.C. 6323 in his finding of facts and evaluation of the evidence and testimony was appropriate in rendering his decision[.]" Id. As authority for the proposition that 5 U.S.C. § 6323 is the "statutory authority for granting of military leave for reservists," the Agency cites to Association of Civilian Technicians, New York State Council and U.S. Department of Defense, National Guard Bureau, Division of Military and Naval Affairs, 42 FLRA 67 (1991) (National Guard Bureau). Opposition at 3-4.

      With regard to Title 38, the Agency submits that "there is no information . . . that provides specific guidance or provisions for granting military leave to those civilian employees in the uniformed service including those in the Reserves." Id. at 3. In addition, the Agency states that the parties recognized the controlling nature of 5 U.S.C. § 6323 when they referenced it in Article 24 [n8]  of the agreement, and that if Title 38 was applicable, "it also would have been included" as a binding provision. Id.

      The Agency concludes that the Union has failed to prove that the award is contrary to law.

IV.     Analysis and Conclusions

A.     Standard of Review

      The Union's exception involves an allegation that the Award is inconsistent with law. Accordingly, the Authority applies a de novo standard of review. 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 the arbitrator's legal conclusions are consistent with the applicable standard of law. See 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) (U.S. DOA). In making that assessment, we defer to the arbitrator's underlying factual findings. See id.

B.     The Award Is Not Contrary To Law

      It is well established that 5 U.S.C. § 6323 is the statutory authority for granting military leave to Reservists of the uniformed services and National Guardsmen who are civilian employees of the Federal Government. See National Guard Bureau, 42 FLRA 67. Specifically, with certain exceptions not relevant here, 5 U.S.C. § 6323 entitles Federal Government employees to up to 15 days per fiscal year of "leave without loss in pay, time or performance or efficiency rating for active duty . . . as a Reserve of the armed forces or member of the National guard." A federal employee may receive his or her civilian pay through military leave, for the same period that he or she receives pay from the military for Reserve active duty. [ v55 p768 ]

      In contrast, the Union contends that 5 U.S.C. § 6323 does not govern this case, and that the award conflicts with the protections extended to employees by the USERRA, 38 U.S.C. §§ 4301-4333. [n9]  We disagree. As explained in National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 43 FLRA 1140, 1143-45 (1992) (VAMC Newington), 5 U.S.C. § 6323 and the USERRA's predecessor statute, the Veterans Re-employment Rights Act (38 U.S.C. §§ 2021-27), are not inconsistent statutory provisions. In that case, the Authority found that "5 U.S.C. § 6323(a) involves only the accrual and use of military leave for Federal employees required to attend military training[,]" while "38 U.S.C. § 2024(d) involves only the obligation to grant employees leaves of absence to attend military training[.]" VAMC Newington, 43 FLRA at 1144 (emphasis added). In this regard, and as recognized by the Arbitrator, the USERRA is inapplicable to a question of whether an employee is entitled to paid, military leave for the time that he or she performs Reserve duties.

      A review of the award demonstrates that the Arbitrator found that the issue, as stipulated, specifically concerned whether the Agency properly denied the grievant's application to use military leave to perform Reserve duties. The parties also stipulated that military leave is not authorized for periods of inactive duty. In this connection, we note that military leave is granted only for periods of active duty. See supra note 1. Consequently, the Union argued before the Arbitrator that the grievant requested leave for active duty, and was therefore entitled to use military leave for the period of his absence. However, the Arbitrator relied on the testimony of the grievant's commanding officer in finding that the grievant had been scheduled to perform two weeks of inactive duty. The Authority defers to an arbitrator's findings of fact. U.S. DOA, 53 FLRA at 1710. Accordingly, we find that the Agency properly denied the grievant's application for military leave because the grievant had not been scheduled to perform active duty in this case.

      The Union's arguments to the contrary are unconvincing. The USERRA entitles any person "whose absence from a position of employment is necessitated by reason of service in the uniformed services" to the "reemployment rights and benefits and other employment benefits of this chapter . . . . " 38 U.S.C. § 4312(a). Applying the USERRA to this case, it might be possible to find that the Agency should have granted the grievant's request for two weeks of leave, regardless of whether the request was for active or inactive duty. However, the stipulated issue in the arbitration concerned the propriety of the Agency's handling of the "military leave" request which is governed by 5 U.S.C. § 6323. The required application of § 6323 to the issue in this case is underscored by the implementing regulations under Title 38, where the definitions section distinguishes between "military leave" and "leave of absence," the former being subject to § 6323. 5 C.F.R. § 353.102.

      We note that the Arbitrator addressed an argument by the Union that the Agency was obligated to grant the grievant's request for "annual leave for the [two week] period he requested" even if the period of service was for inactive duty. Award at 8-9. On this issue, the Arbitrator found that "there is no requirement that an employee's request for leave for inactive military duty trump all other obligations to other employees." Id. at 9. The Arbitrator also found that "[t]he employer was under no duty . . . to accommodate the [g]rievant's request for leave." Id. In making this determination, the Arbitrator did not consider whether the Agency was required by the USERRA to grant a request for leave to perform inactive duty. We find that the Arbitrator's statements in this regard are dicta, and therefore, there is no basis on which to consider whether they are contrary to law. The Arbitrator's resolution of the issue, as narrowly stipulated by the parties, is consistent with applicable law, i.e., 5 U.S.C. § 6323.

V.     Decision

      The Union's exceptions are denied. [ v55 p769 ]


APPENDIX

5 U.S.C. § 6323. Military leave; Reserves and National Guardsmen

(a)(1) . . . an employee . . . is entitled to leave without loss in pay, time, or performance or efficiency rating for active duty or engaging in field or coast defense training . . . 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.

Pertinent Provisions of the USERRA:

§ 4301.          Purposes; sense of Congress

(a)     The purposes of this chapter are:

      (1)     to encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service;

      (2)     to minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt reemployment of such persons upon their completion of such service; and

      (3)      to prohibit discrimination against persons because of their service in the uniformed services.

(b)     It is the sense of Congress that the Federal Government should be a model employer in carrying out the provisions of this chapter.

§ 4303.     Definitions.

For the purposes of this chapter:

. . . .

(2)     The term "benefit", "benefit of employment", or "rights and benefits" means any advantage, profit, privilege, gain, status, account, or interest (other than wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment.

. . . .

(4)(A)(ii) . . . the term "employer" . . . includ[es] . . . the Federal Government.

. . . .

(13)     The term "service in the uniformed services" means the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, and a period for which a person is absent from a position of employment for the purpose of an examination to determine the fitness of the person to perform any such duty.

§ 4311.     Discrimination against persons who serve in the uniformed services and acts of reprisal prohibited

(a)     A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation. [ v55 p770 ]

§ 4312.     Reemployment rights of persons who serve in the uniformed services

(a) . . . any person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of this chapter if:

      (1)     the person (or an appropriate officer of the uniformed service in which such service is performed) has given advance written or verbal notice of such service to such person's employer;

. . . .

(e) (1) . . . a person referred to in subsection (a) shall, upon the completion of a period of service in the uniformed services, notify the employer referred to in such subsection of the person's intent to return to a position of employment with such employer as follows:

      (A)     In the case of a person whose period of service in the uniformed services was less than 31 days, by reporting to the employer:

           (i)     not later than the beginning of the first full regularly scheduled work period on the first full calendar day following the completion of the period of service and the expiration of eight hours after a period allowing for the safe transportation of the person from the place of that service to the person's residence; or

           (ii)          as soon as possible after the expiration of the eight-hour period referred to in clause (i), if reporting within the period referred to in such clause is impossible or unreasonable through no fault of the person.

Agreement Language Cited By Arbitrator:

ARTICLE 26

LEAVE FOR SPECIAL CIRCUMSTANCES

Section 10.          Bargaining unit members who serve in the military reserve shall be granted up to fifteen (15) days' military leave during each fiscal year while performing active duty for training, as stated in Title 5 U.S.C. 6323. To the extent operational requirements permit, the Employer shall adjust the schedule of a bargaining unit employee, who is a military reservist, to allow him/her to attend inactive reserve training/drills.

FAA Absence and Leave Order 3600.4 (Nov. 9, 1970):

CHAPTER 6. MILITARY LEAVE

SECTION 1. MILITARY LEAVE FOR TRAINING

51.     GENERAL.     The military leave described in this section is approved absence from official duty without charge to leave or loss of pay, which is authorized for eligible employees who are members of the National Guard or Reserve components of the Armed Forces. Eligible employees are entitled to military leave for each day, but not more than 15 calendar days in any fiscal year, during which they are on active military duty or are engaged in field or coast defense training.






Footnote # 1 for 55 FLRA No. 128

   In pertinent part, "military leave" is defined as "leave without loss in pay, time, or performance or efficiency rating for active duty . . . as a Reserve of the armed forces or member of the National Guard." 5 U.S.C. § 6323(a)(1). A member of an Armed Forces Reserve organization must be on active duty in order to be entitled to military leave from that member's federal civilian employment. See, e.g., Comp. Gen. Decision B-202564 (July 31, 1981); B-187704 (May 6, 1977). By its terms, 5 U.S.C. § 6323 precludes granting military leave for periods in which Reservists perform inactive duty.


Footnote # 2 for 55 FLRA No. 128

   "Drills" may be performed as part of a Reservist's training requirements. The training requirements for members of Reserve components of the Armed Forces are found at 10 U.S.C. § 10147. In this case, the grievant performed inactive duty drills during the week that he was on annual leave.


Footnote # 3 for 55 FLRA No. 128

   See grievance, attached to Agency's opposition.


Footnote # 4 for 55 FLRA No. 128

   The stipulated issue is set forth in the parties' "Joint Stipulations of Issue, Exhibits, and Facts[,]" attached to the Agency's opposition.


Footnote # 5 for 55 FLRA No. 128

   In pertinent part, Article 26, Section 10, and FAA Order 3600.4, state that employees are entitled to up to fifteen days of military leave per fiscal year, for time that they perform active duty. Both provisions are set forth in the Appendix to this Decision.


Footnote # 6 for 55 FLRA No. 128

   In pertinent part, 5 U.S.C. § 6323 is set forth in the Appendix to this Decision. Also in pertinent part, the statutory sections cited by the Union are set forth in the Appendix to this Decision. In this regard, the Union argues in its exceptions that the Award is contrary to Title 38 of the U.S. Code, as set forth in the Uniformed Services Employment and Reemployment Act (hereinafter "Title 38" or "USERRA"), 38 U.S.C. §§ 4301-4333.


Footnote # 7 for 55 FLRA No. 128

   The Arbitrator stated that 5 U.S.C. § 6323 "would more appropriately apply" in this case, but "[h]owever, the applicability of the provisions need not be resolved here . . . . " Award at 7. He nevertheless appears to apply 5 U.S.C. § 6323, as described below.


Footnote # 8 for 55 FLRA No. 128

   The Agency inadverte