10:0018(5)AR - AFGE Local 1395 and HHS, SSA -- 1982 FLRAdec AR

 10 FLRA No. 5
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 1395
 Union
 
 and
 
 DEPARTMENT OF HEALTH AND
 HUMAN SERVICES, SOCIAL
 SECURITY ADMINISTRATION
 Agency
 
                                            Case No. O-AR-173
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR ALLEN D. SCHWARTZ 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 RULES AND REGULATIONS.  /1/
 
    THE DISPUTE IN THIS MATTER CONCERNS MANAGEMENT'S REFUSAL TO GRANT THE
 GRIEVANT AN EXCUSED ABSENCE WITHOUT CHARGE TO LEAVE (ADMINISTRATIVE
 LEAVE) FOR HER FAILURE TO REPORT TO WORK ON A DAY OF A LOCAL TRANSIT
 STRIKE.  THE GRIEVANT ACCOUNTED FOR THE ABSENCE AS ANNUAL LEAVE AND
 FILED A GRIEVANCE WHICH WAS ULTIMATELY SUBMITTED TO ARBITRATION.
 
    THE ISSUE BEFORE THE ARBITRATOR WAS WHETHER THE AGENCY'S PERSONNEL
 POLICIES GOVERNING THE GRANTING OF EXCUSED ABSENCES WERE PROPERLY
 APPLIED TO THE GRIEVANT.  THE ARBITRATOR DETERMINED THAT THE ACTIVITY
 HAD IMPROPERLY APPLIED THE ESTABLISHED CRITERIA FOR GRANTING EXCUSED
 ABSENCES AND THAT THE GRIEVANT SHOULD HAVE BEEN GRANTED A DAY OF EXCUSED
 ABSENCE.  AS HIS AWARD HE ORDERED THE DAY OF ANNUAL LEAVE CHANGED TO A
 DAY OF EXCUSED ABSENCE WITHOUT CHARGE TO LEAVE.
 
    IN ITS EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS CONTRARY TO
 GOVERNING LAW AND REGULATION.  SPECIFICALLY, THE AGENCY ARGUES THAT THE
 APPLICATION OF THE PERSONNEL POLICIES REGARDING EXCUSED ABSENCES ARE
 DISCRETIONARY WITH MANAGEMENT AND THAT CONSEQUENTLY SUCH POLICIES CANNOT
 CONSTITUTE THE BASIS FOR A BACKPAY AWARD RECREDITING THE GRIEVANT'S
 ANNUAL LEAVE ACCOUNT.
 
    THE AGENCY'S EXCEPTION HOWEVER FAILS TO ESTABLISH THAT THE AWARD IS
 CONTRARY TO GOVERNING LAW OR REGULATION.  AS NOTED, THE ARBITRATOR
 DETERMINED THAT AGENCY POLICIES PRESCRIBED THE CONDITIONS AND CRITERIA
 PURSUANT TO WHICH EXCUSED ABSENCES WOULD BE GRANTED, AND HE FOUND IN
 TERMS OF THIS CASE THAT MANAGEMENT'S IMPROPER APPLICATION OF THESE
 POLICIES RESULTED IN THE REFUSAL OF AN EXCUSED ABSENCE TO THE GRIEVANT
 THAT SHE OTHERWISE WOULD HAVE RECEIVED.  THUS, THE ARBITRATOR'S AWARD
 ORDERING THE RECREDITING OF THE GRIEVANT'S ANNUAL LEAVE ACCOUNT IS FULLY
 CONSISTENT WITH THE GRIEVANT'S STATUTORY ENTITLEMENT UNDER THE BACK PAY
 ACT TO BE MADE WHOLE FOR THE REDUCTION IN HER PAY AND ALLOWANCES, I.E.,
 ANNUAL LEAVE, AS A DIRECT RESULT OF THE UNWARRANTED ACTION OF DENYING
 HER AN EXCUSED ABSENCE, SEE 5 U.S.C. 5596(B)(1)(A)(I) (SUPP. IV 1980);
 NATIONAL LABOR RELATIONS BOARD UNION, LOCAL 19 AND OFFICE OF THE GENERAL
 COUNSEL, NATIONAL LABOR RELATIONS BOARD, 7 FLRA NO. 7(1981), AND THE
 AWARD HAS NOT BEEN SHOWN TO BE OTHERWISE CONTRARY TO LAW OR REGULATION,
 SEE NORTHEASTERN PROGRAM SERVICE CENTER, OFFICE OF PROGRAM SERVICE
 CENTERS, SOCIAL SECURITY ADMINISTRATION AND AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LOCAL 1760, 7 FLRA NO. 120(1982) (IN WHICH THE
 AUTHORITY DETERMINED THAT NOTHING IN GOVERNING LAW OR REGULATION
 PRECLUDED AN ARBITRATOR FROM DETERMINING THAT THE DENIAL OF LEAVE
 WITHOUT PAY WAS UNWARRANTED);  LONG BEACH NAVAL SHIPYARD, LONG BEACH,
 CALIFORNIA AND INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL
 ENGINEERS, LOCAL 174, AFL-CIO AND AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2237, AFL-CIO AND FEDERAL EMPLOYEES METAL TRADES
 COUNCIL, LONG BEACH, CALIFORNIA, 7 FLRA NO.  53(1981) (IN WHICH THE
 AUTHORITY DETERMINED THAT A PROPOSAL WHICH UNDER THE STATED CONDITIONS
 WOULD REQUIRE THE GRANTING OF ADMINISTRATIVE LEAVE WAS NOT PROHIBITED BY
 GOVERNING REGULATION AND WAS WITHIN THE DUTY TO BARGAIN).  ACCORDINGLY,
 THE AGENCY'S EXCEPTION IS DENIED.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 7, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE OPPOSITION FILED BY THE UNION TO THE AGENCY'S EXCEPTION WAS
 UNTIMELY AND THEREFORE HAS NOT BEEN CONSIDERED.