American Federation of Government Employees, Local 3911, AFL-CIO, (Union) and United States, Environmental Protection Agency, Region 2 (Agency)

[ v60 p112 ]

60 FLRA No. 25

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 3911, AFL-CIO
(Union)

and

UNITED STATES
ENVIRONMENTAL
PROTECTION AGENCY,
REGION 2
(Agency)

0-AR-3782

_____

DECISION

July 27, 2004

_____

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 Richard M. Gaba filed by the Union under § 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 did not violate the parties' collective bargaining agreement by charging the grievant a day of annual leave, rather than granting her an excused absence, and denied the grievance.

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

II.     Background and Arbitrator's Award

      The grievant is a participant in the Agency's Flexiplace Program. Her official duty station (ODS) is the Agency's New York, NY office and her alternative work site (AWS) is at her home in Staten Island, NY. At the time of the grievance, the grievant's flexiplace work schedule provided that she work at her AWS every Tuesday and every other Friday.

      From February 14 through February 19, 2003, the grievant was on previously scheduled annual leave. On Tuesday, February 18, a day that the grievant would normally have worked at her AWS, her ODS was closed due to a snow emergency. The employees scheduled to be at the ODS that day were excused from duty without being charged leave.

      The Union filed a grievance alleging that, pursuant to the parties' flexiplace agreement and the Agency's leave manual, the grievant should not have been charged leave for the day that the ODS was closed due to a snow emergency. [*]  The grievance was not resolved and was submitted to arbitration.

      The parties agreed to stipulations of fact in lieu of a hearing, and stipulated to the following issue:

Did the Agency breach the Master Collective Bargaining Agreement by charging [the grievant], and similarly situated employees, annual leave on February 18, 2003, rather than granting an excused absence?

Award at 1.

      The Arbitrator found as follows:

In the case of the employee who is in the [flexiplace program], the [alternative work location] may or may not be `closed'. If the employee's AWL day falls on a day when the ODS is closed due to an emergency, but that emergency does not prevent the employee from reporting for duty at the AWL, then that employee is charged a day of leave. If the employee would have been unable to access the AWL because of the emergency that forced the ODS to close, the employee would not be charged with a leave day, whether or not the employee was on leave. Conversely, if the [flexiplace agreement] employee would have been able to access the AWL, it makes no difference that the employee was on annual leave at the time of the emergency. The words of the [flexiplace agreement] are clear: "Employees are not entitled to excused absence for emergency closings . . . that do not affect their reporting for duty at the alternative work location." (Article VII.E.4).

Award at 6. As such, the Arbitrator found that the Agency did not violate the parties' agreement by charging the grievant and similarly situated employees with annual leave, rather than granting an excused absence, and he denied the grievance. [ v60 p113 ]

III.     Positions of the Parties

A.      Union's Exceptions

      First, the Union argues that the award is contrary to 5 U.S.C. § 6302(a). Section 6302(a) provides that days of leave "are days on which an employee would otherwise work and receive pay and are exclusive of holidays and nonworkdays established by Federal statute, Executive order, or administrative order." The Union argues that because the ODS was closed by an administrative order, "that day was converted from a workday to a non-workday[,]" and "[s]ince leave provided by statute can only be used on workdays, [Article] VII.E.4 of the AFGE/EPA Flexiplace Agreement . . . is contrary to law with respect to office closures, and thus, unenforceable." Exceptions at 3. Accordingly, the Union argues that the Arbitrator should have ruled that the employees on previously approved leave should have had their leave converted to an excused absence.

      The Union also argues that the award violates management's rights under the Statute. In this regard, the Union asserts that the Agency, by claiming that the grievant was permanently scheduled to work at her AWS every Tuesday and therefore was not entitled to an excused absence the day the ODS was closed, violated its own right to change employee work schedules, approve leave, and assign work under § 7106(a) of the Statute. The Union asserts that Article VII.E.4 "precludes management from granting an excused absence under any circumstances other than events that do not effect an employee's ability to report for duty at their AWL[,]" and is therefore unenforceable. Id at 4. Further, the Union claims that Article VII.E.4 is not a procedure under § 7106(b)(2) of the Statute or an appropriate arrangement under § 7106(b)(3).

B.     Agency's Opposition

      The Agency claims that the Union's first argument, that the award is contrary to 5 U.S.C. § 6302(a), does not take into account the development of flexiplace or telecommuting in the federal government. Citing guidance from the Office of Personnel Management (OPM) and the General Services Administration, the Agency asserts that "[i]t is their expert opinion and guidance that the law permits agencies to require that employees working at an alternative work site continue to do so during emergency closures of federal offices." Opposition at 4-5.

      As to the second argument, the Agency asserts that the Union's reliance on a management rights argument is misplaced because there is no management right at issue. According to the Agency, work location does not involve an assignment of work within the meaning of § 7106(a). The Agency further argues that, contrary to the Union's argument, the cited provision in the flexiplace agreement is not a limitation on management. Rather, it "simply says that employees have no entitlement to administrative leave in a particular circumstance; it does not speak to management's right to change work schedules." Id. at 6 (emphasis omitted).

IV.     Analysis and Conclusions

      When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States Dep't of Def., Dep'ts of the Army & the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

A.     The Award Is Not Contrary to 5 U.S.C. § 6302(a)

      As stated above, § 6302(a) provides that days of leave "are days on which an employee would otherwise work and receive pay and are exclusive of holidays and nonworkdays established by Federal statute, Executive order, or administrative order." In our view, the award is not contrary to § 6302(a) for two reasons.

      First, it is not at all clear that § 6302(a) is relevant to the grievant's situation, because there was no administrative order that applied to the grievant. The facts stipulated by the parties demonstrate that the only pertinent directive issued by the Agency closed the ODS and did not address employees who were scheduled to work at an AWS that day. See Award, Attachment A, paragraphs 10-15. As there is no dispute that, had the grievant worked that day, she would have done so at her AWS and not the ODS, the directive to close the ODS did not apply to her in these circumstances.

      Moreover, even if § 6302(a) did apply, the award is not contrary to that provision. Annual leave is governed by chapter 63 of title 5, United States Code. OPM is responsible for prescribing regulations necessary for the administration of the annual leave provisions contained in that chapter. 5 U.S.C. § 6311. In interpreting those statutory and regulatory provisions, OPM has specifically held that an agency may require employees under a flexiplace agreement to continue to work at their alternative worksite when the agency's official duty site [ v60 p114 ] is closed due to extreme weather conditions. See U.S. Office of Personnel Management, Telework: A Management Priority, A Guide for Managers, Supervisors, and Telework Coordinators; Appendix D, Frequently Asked Questions and Answers (2003). The Authority normally defers to guidance from OPM on statutory matters that OPM is entrusted to interpret if that guidance constitutes a reasonable interpretation of the statutory language. See AFGE, Local 1978, 56 FLRA 894, 897 (2000). As OPM reasonably has found that it is lawful for an agency to require employees to report to duty at their alternative work site on a day when the official duty site is closed due to a snow emergency, we defer to the OPM guidance on this matter and find that the Union has not shown that the award is unlawful.

B.     The Award Is Not Contrary to 5 U.S.C. § 7106(a)

      The Union also asserts that the award violates a management right. Specifically, the Union argues that "[f]or the Agency's and [the Arbitrator's] rationale to stand would require the conclusion that once established, Flexiplace work schedules can never be changed based upon contemporaneous events[,]" and "[s]uch reasoning would clearly prevent management from acting at all to change the employee's work at home day." Exceptions at 4.

      The premise of the Union's argument is incorrect. In order to demonstrate that an award violates a management right under § 7106 of the Statute, it must be shown that the award affects the management right being asserted. See, e.g., Fed'l Energy Regulatory Comm'n, 58 FLRA 596, 599 (2003). The award in this case does not in any way preclude the Agency from making changes to the grievant's or any other employee's flexiplace work schedules, grant leave, or assign work. As such, there is no effect on any of management's rights as asserted by the Union. Accordingly, we deny this exception.

V.     Decision

      The Union's exceptions are denied.


APPENDIX

EPA Leave Manual

CHAPTER 9 - EXCUSED ABSENCE

. . . .

12. EMERGENCY CONDITIONS.

      a. Hazardous Weather Conditions

           (1)      Policy.

                (a) When hazardous weather conditions, such as heavy snow, icing, or hurricane result in the closing of Agency Offices for one or more whole days, all employees of offices affected by the closing, except those determined in advance to be performing critical functions, will be excused from work without charge to leave, including employees who would otherwise have been on approved leave.

AFGE/EPA Flexiplace Program

VII. Flexiplace Guidelines

. . . .

      E. Time and Attendance

. . . .

      4.       Administrative Leave/Emergency
          Closings/ Late Openings/Dismissals

Employees are not entitled to excused absence for emergency closings, delayed openings or early dismissals for conditions or events that do not affect their reporting for duty at the AWL. In the event that conditions prevent the employee from performing his/her duties at the AWL (e.g., power outage), the employee must report to the official duty station if it is open, subject to the same excused absence allowances provided to other employees at that site, or request appropriate leave.