Social Security Administration, Baltimore, Maryland (Agency) and American Federation of Government Employees, Council 220 (Union)

[ v58 p630 ]

58 FLRA No. 160

SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
COUNCIL 220
(Union)

0-AR-3531

_____

DECISION

July 11, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Irwin Kaplan filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      The Union filed grievances, which disputed the Agency's refusal to grant administrative leave to all, rather than some, employees on the day before the Christmas holiday. The Arbitrator sustained the grievances. We conclude that the Agency has failed to establish that the award is deficient. Accordingly, we deny the Agency's exceptions.

II.      Background and Arbitrator's Award

      On December 23, 1999, in recognition of the Christmas holiday (observed as a Federal holiday on Friday, December 24), the Agency granted 4 hours of excused absence (administrative leave) to those employees who were at work in its field offices and teleservice centers on that day. Most employees who did not work that day, either because they were on leave or because they were not scheduled to work as they were part-time or on a compressed work schedule, were not granted administrative leave.

      The Union filed grievances, which primarily claimed that the Agency violated the parties' national agreement by charging employees on leave for a full day and by [ v58 p631 ] refusing to grant administrative leave to be taken at a later date to employees who were not at work on that day. The grievances were consolidated and submitted to arbitration on the following stipulated issues:

1.      Whether [the Agency] violated Article 31, Section 3.E of the National Agreement, stated Agency policy, law and regulations by charging a full day's leave to those employees who were on pre-approved leave on December 23, 1999, when those employees who were on duty were excused for four hours without charge to leave.
2.      Whether [the Agency] violated Article 3, Section 2.A of the National Agreement by refusing to grant time off at a later date to those employees who were on pre-approved leave, a compressed work schedule non-tour day or part-time non-tour day on December 23, 1999, when those on duty were excused for four hours without charge to leave.

Award at 2 (footnotes and citation omitted). The Arbitrator determined that the Agency's granting of a holiday benefit to certain employees while refusing to grant the benefit to other employees violated Article 31 and Article 3 of the national agreement.

      The Arbitrator acknowledged that on its face, Article 31 does not appear to cover this situation. [n1]  However, the Arbitrator concluded that "the totality of the record" supported relief under the article. Id. at 16. The Arbitrator noted that only one member of the parties' bargaining teams for the national agreement testified at the hearing and that he testified that the individuals who negotiated Article 31 intended it to cover closings warranted by any conditions. In the Arbitrator's view, the evidence also established an agreement that all employees would be granted the benefits of an early release and that this agreement would be embodied in a separate memorandum. The Arbitrator found that the 1994 memorandum from the Deputy Commissioner for Human Resources to all deputy commissioners embodied this understanding and clearly expanded the language of Article 31, Section 3.E.3 to include dismissals warranted by conditions other than inclement weather and to include employees on paid leave.

      In finding a violation of Article 3, Section 2, [n2]  the Arbitrator found of "paramount significance" management's intentions in granting a benefit of administrative leave. Id. at 17. To the Arbitrator, the "benefit was intended to reward employees for the work they had done over the year and as an expression of holiday goodwill." Id. at 17-18. He refused to find that "only those employees who chose to work or who had too little seniority to successfully bid for annual leave on December 23 were worthy of that reward." Id. at 18. He also refused to find that "some employees were less entitled to the Agency's goodwill than others." Id. He further found to be persuasive evidence that the Agency intended that the grant of administrative leave would be uniform across the country. He noted that no distinction was made between employees of one region or office and another region or office. In these circumstances, the Arbitrator ruled that "[f]airness and equity require that, where [m]anagement intended that there be uniformity, all employees enjoy the benefits of that uniformity." Id.

      In so ruling, the Arbitrator rejected the Agency's contention that the benefit could not be provided to employees for whom December 23 was not a work day. The Arbitrator emphasized that these employees are entitled to the benefit because they are part of the universe which the Agency sought to reward and that the leave could be taken at a later time during which they were scheduled to work. He noted, as follows:

[E]mployees who remain at work on a skeleton crew when others are sent home on an early dismissal are rewarded with administrative leave to be taken later. In effect, they are being paid for more hours than were scheduled in their tour of duty in the same way that [compressed work schedule] or part-time employees who receive the benefit here may be said to be paid for more hours than scheduled in their tour of duty. Since both get to take that administrative leave in another pay period, I find no violation of any compensation regulations.

Id. at 19-20.

      Accordingly, he sustained the grievances, finding that the Agency wrongfully denied the benefits of the early dismissal to employees on pre-approved leave and to employees on compressed and part-time work schedules who were not scheduled to work. He directed the following remedy:

[T]he Agency make those field office and teleservice center employees whole either by [ v58 p632 ] granting them four hours of administrative leave, or, if they are part-time employees, granting them administrative leave equal to one-half their part-time tour hours, to be taken at a mutually agreeable time. Alternatively, they may be made whole by restoring an equivalent amount of leave to their leave records.

Id. at 20.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the award is deficient because the award is contrary to law and regulation, fails to draw its essence from the agreement, and is based on a nonfact and because the Arbitrator exceeded his authority.

      The Agency notes that the establishment of an employee's tour of duty is governed by 5 C.F.R. part 610 and is a management right under § 7106(a)(2)(A) and (B) and § 7106(b)(1). The Agency argues that under these provisions, on a day that a part-time employee or an employee on a compressed work schedule is not scheduled to work, there are no work or compensation obligations between these employees and the Agency. The Agency asserts that therefore, the award is contrary to these provisions and the Arbitrator exceeded his authority by awarding administrative leave to part-time employees and compressed work schedule employees who were not scheduled to work on December 23. The Agency claims that "[a] non-work day is a day without compensation of any kind" and that "[o]ne cannot be let off work, directly or constructively, on a day on which one is not scheduled to work." Exceptions at 10, 16. The Agency maintains that the Arbitrator was not authorized to retroactively establish a working relationship and a tour of duty on a non-work day.

      The Agency asserts that the Arbitrator interpreted the words "fairly and equitably" from Article 3, Section 2 of the agreement to require absolute uniformity and that such an interpretation fails to draw its essence from the agreement. The Agency maintains that the ordinary and legal meaning of these two words is "characterized by flexibility and individuation[,]" where "[d]ifferences in circumstances are taken into account and applied to specific situations." Id. at 14. The Agency also maintains that "fairly and equitably" and "uniform" are two different terms. The Agency further claims that there were operational factors that differed among regions that required variation among regions not permitted by the Arbitrator's interpretation. In the Agency's view, "[t]o apply the stricture of absolute uniformity to the National Agreement . . . is totally impermissible." Id. at 16.

      The Agency maintains that the triggering event of Article 31, Section 3E is hazardous weather or other emergency situation that would warrant an early dismissal. The Agency asserts that the award is based on a nonfact because the Arbitrator erroneously found that Article 31, Section 3E applied to the grant of administrative leave prior to a holiday.

B.      Union's Opposition

      The Union contends that the Agency's exceptions should be denied.

      The Union argues that the award is not contrary to § 7106 or 5 C.F.R. part 610 because the award does not affect any employee's tour of duty. The Union maintains that the Arbitrator's remedy does not direct management to change tours of duty or bargain over tours of duty, but rather grants adversely affected employees administrative leave. The Union notes that the Authority has held that agencies have broad discretion in granting administrative leave. Opposition at 3 (citing Dep't of Veterans Affairs Med. Ctr., Asheville, N.C., 51 FLRA 1572 (1996) (VAMC, Asheville)).

      The Union maintains that the award does not fail to draw its essence from the agreement and was not in excess of the Arbitrator's authority. The Union asserts that the Arbitrator's interpretation of Article 3, Section 2 was based on bargaining history, testimony of Agency witnesses that uniformity was desired for the grant of administrative leave, and the rationale for granting time off.

      The Union asserts that the Agency fails to establish that the award is based on a nonfact because its objection is nothing more than disagreement with the Arbitrator's interpretation of Article 31, Section 3E of the agreement.

IV.      Analysis and Conclusions

A.      The award is not contrary to § 7106 of the Statute or 5 C.F.R. part 610.

      The Agency contends that the award is contrary to law and regulation. When a party's exceptions dispute an award's consistency with law or regulation, we review the questions of law and regulation raised by the award and the exceptions de novo. See NTEU Chapter 24, 50 FLRA 330, 332 (1995). In applying a de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, [ v58 p633 ] 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

     1.     5 C.F.R. part 610.

      In contending that the award is deficient, the Agency maintains that the award is contrary to 5 C.F.R. § 610.102, which defines "tour of duty" as follows:

Tour of duty means the hours of a day (a daily tour of duty) and the days of an administrative workweek (a weekly tour of duty) that constitute an employee's regularly scheduled administrative workweek.

The Agency asserts that by awarding administrative leave to part-time and compressed work schedule employees for whom December 23 was not a work day, the Arbitrator retroactively established a working relationship and tour of duty on a non-work day.

      We conclude that the Agency has failed to demonstrate that the award establishes a tour of duty for these employees, as defined in § 610.102, or otherwise conflicts with part 610. The Arbitrator's grant to these employees of 4 hours of administrative leave does not establish the tour of duty of these employees or change their regularly scheduled administrative workweek. The award also has no retroactive effect on the working relationship and the tour of duty of these employees on December 23, 1999. Because the Agency has not established that the award conflicts with 5 C.F.R. part 610, we deny this exception.

     2.     § 7106 of the Statute

      Again referencing the definition of "tour of duty" set forth in § 610.102, the Agency also maintains that the establishment of a tour of duty is a management right under § 7106(a)(2)(A) and (B) and § 7106(b)(1). In this regard, the Agency asserts that the award of administrative leave to part-time and compressed work schedule employees for whom December 23 was not a work day conflicts with management's rights because the award establishes a tour of duty for these employees on a day that management had determined would be a non-work day. Because we have rejected the Agency's allegation that the Arbitrator's award of administrative leave established a tour of duty for these employees, we similarly reject the Agency's contention that the award conflicts with any management right to establish tours of duty. [n3]  Accordingly, we deny this exception.

B.     The Arbitrator did not exceed his authority

      The Agency also contends that the Arbitrator exceeded his authority. Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to persons who are not encompassed within the grievance. See, e.g., United States Dep't of the Navy, Naval Base, Norfolk, Va., 51 FLRA 305, 307-08 (1995).

      In contending that the Arbitrator exceeded his authority, the Agency argues that the Arbitrator was specifically precluded from granting administrative leave to employees whose tours of duty did not include December 23. However, the Agency has failed to identify any specific limitation on the Arbitrator's grant of administrative leave to these employees. Accordingly, we deny this exception.

C.     The grant of administrative leave was not
impermissible.

      In claiming that the award is deficient, the Agency mistakenly assumes that administrative leave could not permissibly have been granted to employees not on duty on December 23. However, the Authority has long recognized that agencies have broad discretion to grant administrative leave to employees for brief periods of time, such as the 4 hours involved in this case. See United States Dep't of the Air Force, 439th Airlift Wing, Westover Air Reserve Base, Mass., 55 FLRA 945, 949 (1999). As agencies have discretion to grant administrative leave to their employees, management can negotiate the terms under which it will exercise that discretion and such agreements are enforceable in arbitration. See, e.g., VAMC, Asheville, 51 FLRA at 1578. Although the Agency determined to grant administrative leave in terms of an early release on December 23, 1999, the Agency continued to have discretion to grant administrative leave for brief periods to employees for whom that day was not a scheduled work day.

      Furthermore, the Arbitrator found no limitations on the Agency's discretion to have granted administrative leave to such employees in the parties' agreement. The Arbitrator interpreted and applied Article 3 and Article 31 as setting the terms of the grant of administrative leave for holiday goodwill and enforced those terms [ v58 p634 ] in the circumstances of December 23, 1999. The Agency has failed to establish in what manner this enforcement is deficient.

      The Agency also is mistaken in viewing the administrative leave benefit as limited to an early dismissal of employees at work on December 23. As expressly recognized by the Arbitrator, employees who worked as part of a skeleton staff on the afternoon of December 23 were granted the benefit to be used in the future. The Arbitrator was unable to distinguish the grant to these employees from a grant to those employees not scheduled to work on December 23 to be used in the future, and the Agency in its exceptions has failed to establish how one is permissible and the other is impermissible. [n4] 

D.      The award does not fail to draw its essence from the agreement.

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that the Federal courts apply in reviewing grievance arbitration awards in the private sector. See, e.g., AFGE Local 2608, 56 FLRA 776, 778 (2000). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      The Agency argues that the award fails to draw its essence from the agreement because the Arbitrator interpreted the words "fair and equitable" in Article 3 to require a uniform grant of administrative leave. In interpreting and applying Article 3, the Arbitrator was persuaded by management's intentions in granting the benefit of administrative leave. To the Arbitrator, the benefit was intended to reward employees for the work that they had done over the year and as an expression of holiday goodwill. Accordingly, he refused to find that some employees were less entitled to the Agency's goodwill than others. He also found that the Agency intended that the grant of administrative leave would be uniform across the country. In these circumstances, he ruled that "[f]airness and equity require that, where [m]anagement intended that there be uniformity, all employees enjoy the benefits of that uniformity." Award at 18.

      We conclude that the Agency has failed to establish that this interpretation and application of Article 3 disregards the agreement or is irrational, unfounded, or implausible. Accordingly, we deny this exception.

E.      The award is not based on a nonfact.

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See, e.g., AFGE Local 3911, 58 FLRA 101, 104 ((2002). However, the Authority has specifically held that "an arbitrator's interpretation of a collective bargaining agreement does not constitute a matter that can be challenged as a nonfact." United States Dep't of Veterans Affairs, Ralph H. Johnson Med. Ctr., Charleston, S.C., 57 FLRA 489, 493 (2001).

      We conclude, in agreement with the Union, that the Agency's exception challenges as a nonfact the Arbitrator's interpretation of Article 31 to apply to the grant of administrative leave prior to a holiday. Because the Arbitrator's interpretation cannot be challenged as a nonfact, the Agency has failed to establish that the award is based on a nonfact. Accordingly, we deny this exception.

V.      Decision

      The Agency's exceptions are denied. [ v58 p635 ]


APPENDIX

Article 31 pertinently provides as follows:

Section 3--Excused Absences

E.2. When a decision is made to close a work place for a full day by administrative order due to inclement weather or other conditions warranting such closing, employees not required to work, including employees previously authorized annual or sick leave, will not be charged leave. . . .
E.3. When a decision is made to dismiss employees during the workday, employees on duty at the time of the dismissal not involved in essential services will be excused without charge to leave or compensation.
. . . .
E.5. When the opening of an office is delayed due to hazardous weather or other emergency conditions,