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U.S. Federal Labor Relations Authority

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27:0455(65)AR - SSA and AFGE Social Security Local 3231 -- 1987 FLRAdec AR

[ v27 p455 ]
The decision of the Authority follows:

 27 FLRA No. 65
                                            Case No. 0-AR-1282
                         I.  Statement of the Case
    This matter is before the Authority on exceptions to the award of
 Arbitrator Joseph I. Lewis 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.  The Union filed an
 opposition.  /1/
                  II.  Background and Arbitrator's Award
    The grievant in this case is a claims representative who is also an
 officer in the Army Reserve.  In March 1985 he served on active military
 duty for the period beginning March 3 and ending March 15.  In January
 1985, he had requested leave for this period in the following
 increments:  (1) military leave for March 4-7;  (2) annual leave for
 Friday, March 8 and Monday, March 11;  and (3) military leave for March
 12-15.  His requests had been approved by his supervisor on January 8,
    After the grievant returned from the military assignment, his
 supervisor informed him that his application for annual leave on March 8
 and 11 had been cancelled and the entire period designated as military
 leave.  As a result, in addition to the change from annual leave to
 military leave for March 8 and 11, 2 nonworkdays (Saturday, March 9 and
 Sunday, March 10) which had not been counted in his leave application
 were included as military leave days.
    The grievant filed a grievance in which he contended that the
 increase in military leave charged from 8 to 12 days affected his
 performance of military service and that the alteration of his leave
 from annual to military after it had been approved and taken violated
 the collective bargaining agreement and an agency regulation.  The
 grievant sought to reinstate his leave as originally requested and
 approved.  The grievance was submitted to arbitration.
    The Arbitrator framed the issue as follows:
          Is the provision regarding annual leave which appears in
       Article 31 of the National Agreement between the Social Security
       Administration and the American Federation of Government
       Employees, making "the use of accrued annual leave -- the right of
       the employee," once it has been approved as to time by the
       employer, subject to the computation formula for non-working days
       set forth in the Federal Personnel Manual, Chapter 630, Subchapter
       9, on military leave?
    The Arbitrator rejected the grievant's contention that the change in
 type of leave charged affected his ability to perform his military
 duties and found that the grievant received the total amount of military
 leave to which he was entitled for the year.
    However, the Arbitrator found merit in the grievant's charge that the
 Agency violated Article 31, "Time and Leave," of the agreement.  He
 determined that under the terms of the agreement, once the annual leave
 for Friday, March 8 and Monday, March 11 was approved, the Agency had no
 right to change the designation of the leave from annual to military.
 The Arbitrator specifically rejected the Agency's contention that it had
 granted annual leave for March 8 and 11 erroneously and that it was
 required by Federal Personnel Manual (FPM) Chapter 630 to count the
 entire period, including the Saturday and Sunday, as military leave.
 Rather, he concluded that while military leave must be charged for
 Saturday and Sunday (March 9 and 10), nothing in statute, the FPM,
 agency regulations, or the agreement prevented the taking of annual
 leave within the period of military leave.
    As his award, the Arbitrator denied the part of the grievance which
 requested that the Saturday and Sunday not be counted as military leave.
  He sustained that portion of the grievance requesting reinstatement of
 annual leave for Friday, March 8 and Monday, March 11.
                             III.  Exceptions
    A.  Positions of the Parties
    The Agency contends that the portion of the award which sustains the
 grievance is contrary to 5 U.S.C. Section 6323, which entitles employees
 who are military reservists to leave for active duty at the rate of 15
 days per fiscal year.  /2/ The Agency cites decisions of the Comptroller
 General to support its position that the first 15 days of military duty
 must be charged to military leave rather than any other leave category.
 The Agency maintains that since the period of military duty in this case
 was for less than 15 days, all the time should have been charged as
 military leave under 5 U.S.C. Section 6323 and the award is deficient to
 the extent it finds that the grievant's application for 2 days of annual
 leave was not prohibited by the agreement or by law or by regulation.
    The Agency also contends that the award is contrary to the FPM,
 particularly Chapter 630, subchapter 9, section 9-6, "Granting Military
 Leave." The Agency maintains that under this provision, the first 15
 days of active military duty must be charged to military leave.
    The Union contends that to the extent that the award sustains the
 grievance by holding that management could not unilaterally revoke
 approved annual leave under the agreement, the award is not contrary to
 law or regulation.  The Union contends that nothing in 5 U.S.C. Section
 6323 or in any other law or regulation would allow management to make
 such a revocation.
    B.  Analysis and Conclusions
    We agree with the Union that the Arbitrator's award is not contrary
 to law or regulation.  Nothing in 5 U.S.C. Section 6323 provides a basis
 for holding that annual leave cannot be used within a period of military
 leave.  That section only provides for the granting of 15 days per
 fiscal year for specified military leave purposes and is silent as to
 whether annual leave can be used for military leave purposes.
    Similarly, FPM Chapter 630, subchapter 9, section 9-6 contains no
 prohibition against granting annual leave during military leave.
 Paragraph b of that section provides that "(n)onworkdays falling within
 a period of absence on military training duty are charged against the 15
 days of military leave allowed during the year(.)" (Emphasis in
 original.) The Arbitrator applied that rule when he held that the
 grievant was properly charged military leave for Saturday, March 9 and
 Sunday, March 10.
    The Agency relies on the Comptroller General's unpublished decision
 Matter of:  Charles W. Haas, B-212851, Jan. 4, 1984, to support its
 contention that the grievant could not use annual leave during a period
 of military leave.  However, that case discloses only that the
 Comptroller General reaffirmed his consistent holding that annual leave
 cannot be combined with military leave in such a manner as to avoid
 charge of military leave for nonworkdays.  As we have already noted, the
 Arbitrator properly observed this restriction on the use of annual leave
 when he denied the grievance as to the charge for military leave on
 Saturday and Sunday.  The Agency also cites unpublished decision Matter
 of:  George McMillian, B-211249, Sept. 20, 1983, in which the
 Comptroller General held that "(a)n employee may not under normal
 circumstances elect to use annual leave rather than military leave for
 days he is absent from his civilian employment while performing active
 military duty under orders at his own option." That case concerned a
 naval reservist who was charged annual leave after his military leave
 was exhausted.  The Comptroller General stated in that decision that
 "ordinarily" military leave must be used before annual leave can be used
 for active duty.
    However, nothing in the Comptroller General decisions cited by the
 Agency prevents the Arbitrator from finding in the circumstances of this
 case that under the parties' collective bargaining agreement the Agency
 improperly revoked the grant of annual leave to the grievant once it had
 approved the leave and the grievant had used the annual leave on that
 basis.  Accordingly, we conclude that there is no basis for the Agency's
 exceptions that the award is deficient because it is contrary to 5
 U.S.C. Section 6323 or to FPM Chapter 630, subchapter 9, section 9-6.
 The Agency's exceptions constitute mere disagreement with the
 Arbitrator's interpretation and application of the collective bargaining
 agreement and provide no basis for finding the award deficient.  See,
 for example, Social Security Administration and American Federation of
 Government Employees, Local 1760, AFL-CIO, 21 FLRA No. 53 (1986).
                               IV.  Decision
    The Agency's exceptions are denied.
    Issued, Washington, D.C., June 18, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                ---------------  FOOTNOTES$ ---------------
    (1) The Union contends in its opposition that the Agency's exceptions
 should be dismissed because they were untimely filed.  We find that the
 exceptions were timely filed.  See section 2429.22 of the Authority's
 Rules and Regulations, 5 C.F.R. Section 2429.22.
    (2) 5 U.S.C. Section 6323(a)(1) provides:
          Section 6323.  Military leave;  Reserves and National Guardsmen
          (a)(1) Subject to paragraph (2) of this subsection, an employee
       as defined by section 2105 of this title or an individual employed
       by the government of the District of Columbia, permanent or
       temporary indefinite, is entitled to leave without loss in pay,
       time, or performance or efficiency rating for active duty in
       engaging in field or coast defense training under sections 502-505
       of title 32 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.