[ v51 p1572 ]
51:1572(129)CA
The decision of the Authority follows:
51 FLRA No. 129
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER
ASHEVILLE, NORTH CAROLINA
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 446, AFL-CIO
(Charging Party/Union)
AT-CA-30876
_____
DECISION AND ORDER
July 19, 1996
_____
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.(1)
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the General Counsel and the Respondent to the attached decision of the Administrative Law Judge. The Union filed a brief in support of the General Counsel's exceptions and also requested a more inclusive remedy.(2) The General Counsel filed an opposition to the Respondent's exceptions and the Respondent filed an opposition to the Union's exception.
The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it unilaterally discontinued the past practice of granting employees 4 hours of administrative leave for their birthdays without providing the Union notice and an opportunity to bargain on the impact and implementation of the change.
The Judge granted the General Counsel's Motion for Summary Judgment and found a violation based on: (1) the Respondent's failure to answer the complaint; and (2) the Respondent's admission, in its brief, that it had failed to meet its bargaining obligations. The Judge recommended a status quo ante remedy, which restored the practice and provided that affected employees be made whole for lost administrative leave during a specified time frame.
No exceptions were filed to the Judge's finding of a violation. The exceptions and the oppositions concern the Judge's recommended remedy only.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusions that the Respondent violated section 7116(a)(1) and (5) of the Statute. However, we find that a status quo ante remedy is not appropriate in this case. Instead, we order the parties to bargain and to give retroactive effect to the agreement they reach.
II. Judge's Decision
The Judge's decision, which fully sets forth the facts and the basis for his finding of a violation, is attached. As the only matters before us relate to the Judge's remedy, only those portions of his decision are described here.
The Judge recommended a status quo ante remedy, which would restore the practice of providing administrative leave for employees' birthdays and make affected employees whole for lost leave during a specified time frame. In recommending this remedy, the Judge applied the criteria set forth in Federal Correctional Institution, 8 FLRA 604 (1982) (FCI).(3) The Judge determined, however, that it would be inequitable to require the Respondent to grant the full amount of administrative leave lost by employees based on his conclusion that if the complaint had issued in 1993, rather than April 1994, impact and implementation bargaining would not have extended beyond 1993.(4) Instead, the Judge ordered that the Respondent:
Grant four hours administrative leave to each employee in the Medical Administration Service whose birthday has occurred before the date of this Order during the calendar year 1994, and after the date of the Order, grant each employee in the Medical Administration Service four hours administrative leave whose birthday occurs after the date of the Order until good faith bargaining on the impact and implementation of the discontinuance of that practice has been completed.
Judge's Decision at 10.
In finding this remedy appropriate, the Judge rejected the Respondent's argument that granting administrative leave for an employee's birthday was contrary to the FPM and an Agency regulation that "mirrors" the FPM.(5) Id. at 7. The Judge found that the FPM provided discretion to management to grant administrative leave for brief periods of time.
III. Position of the Parties
A. Respondent
The Respondent states that a status quo ante remedy is not proper where the past practice is illegal. The Respondent argues that FPM chapter 630, subchapter 11-5 and FPM Supplement 990-2, Book 630, subchapter 11-5, give agencies discretion to grant administrative leave only in circumstances where there is a Government or civic interest. The Respondent cites various Comptroller General (CG) and Authority decisions in support of its view that administrative leave for matters involving personal convenience or personal reasons has always been found to contravene the FPM.
The Respondent also contends that the Judge's status quo ante remedy violates management's right to assign.(6) According to the Respondent, the Authority has determined that proposals requiring agencies to grant administrative leave violate the right to assign work because the proposals eliminate management's authority to approve or disapprove leave.
In opposition to the Union's request to expand the remedy to include all bargaining unit employees, the Respondent states that not all bargaining unit employees are covered by either the complaint or the Judge's decision.(7) The Respondent argues that the Authority does not consider exceptions involving matters not covered by the complaint or contentions presented for the first time in the exceptions and should not do so here.
B. General Counsel
In its opposition to the Respondent's exceptions, the General Counsel argues that the Respondent offered no case law or other law, rule, or regulation that prohibits it from exercising its discretion to grant a short period of administrative leave in connection with employees' birthdays.
In its exceptions, the General Counsel contends that the Judge exceeded his discretion and applied a standard not found in FCI when he limited the make whole remedy to a specified time frame rather than making that remedy effective from the date of the violation. The General Counsel requests that the Authority order a remedy that restores administrative leave to all bargaining unit employees from the implementation of the change in December 1992 through the completion of bargaining.
C. Union
The Union supports the General Counsel's requested relief and, in addition, requests that the same relief be granted to all bargaining unit employees employed by the Respondent, not simply those in the Medical Administration Service. In support of its request, the Union cites the parties' collective bargaining agreement, which provides that all employees shall be treated fairly and equitably.
IV. Analysis and Conclusions
A. The Respondent Had Discretion Under the FPM to Grant Brief Periods of Excused Absence in Connection With Employee Birthdays
FPM chapter 630, subchapter 11 provided guidance to agencies in granting excused absences, commonly called administrative leave.(8) By its terms, chapter 630 was "not intended to be a comprehensive index of all instances in which excused absence may be granted[.]" FPM chapter 630, subchapter 11-1. Instead, it set forth illustrative examples of the situations for which administrative leave could be granted. Id., subchapter 11-6. Generally speaking, such leave could be granted in limited circumstances that were directly related to the agency's mission, enhanced the development of skills of an employee, or were officially sponsored or sanctioned by the head of an agency. Id., subchapter 11-3. In addition, agencies had the authority to grant excused absences "in limited circumstances for the benefit of the agency's mission or a Governmentwide recognized and sanctioned purpose." Id., subchapter 11-5. As relevant here, subchapter 11-6(c), entitled "Agency Determinations," provided that "Agencies generally determine the situations in which they will excuse employees from duty." That provision then recited "examples of recurring situations which may warrant excused absence . . . ."
Other than its general argument that the practice of granting administrative leave for employee birthdays was illegal under the FPM, the Respondent points to no specific portion of the FPM that clearly established that the practice was unlawful. Moreover, our examination fails to disclose any express language in the FPM precluding the use of leave for such a purpose. Rather, it is evident from the language of the FPM that agencies had discretion in determining when the use of administrative leave was appropriate. The situations described in the FPM were presented as "guidance" offered to agencies for use in determining the situations in which employees would be excused from duty and expressly were "not intended to be a comprehensive index of all instances" for which leave could be granted. FPM chapter 630, subchapter 11-1. As such, they were illustrative examples only, and there is no indication that they described the universe of situations in which administrative leave would be appropriate. Accordingly, the fact that leave for employee birthdays was not listed among these examples is not dispositive of whether agencies had the discretion to grant brief absences for that purpose.
To support its position, the Respondent cites various Comptroller General decisions in which the use of administrative leave was found not to be appropriate.(9) However, none of those decisions involved the granting of administrative leave for use in connection with employee birthdays. Moreover, other decisions support a conclusion that administrative leave could be authorized in circumstances like those in this case. A dispositive factor appears to be whether the agency had originally approved or disapproved the leave at issue. For example, in Matter of: A Christmas Case, 64 Comp. Gen. 171 (1984), an installation commander granted the afternoon of December 23 off as a holiday good-will gesture. Subsequently, the civilian personnel officer determined that the release of employees contravened the FPM. On review, the Comptroller General upheld the installation commander's decision. In so doing, the CG relied on the agency's discretion to grant administrative leave. The CG noted, among other things, that the "listing [in the FPM] is not exclusive nor does it purport to usurp the discretion of agency heads or installation commanders to make grants of short periods of administrative leave in appropriate cases." Id. at 172. In other decisions, the CG looked to the "broad framework" of the FPM in upholding agency grants of administrative leave for such activities as participating in a medical study, Matter of: Department of Housing and Urban Development Employee--Administrative Leave, 67 Comp. Gen. 126 (1987), and providing services to a Federal credit union, Matter of: Administrative Leave--Federal Employees Providing Advice and Support to Federal Credit Unions, 63 Comp. Gen. 542 (1984). In the former case, the Comptroller General found leave appropriate after expressly stating that none of the examples in the FPM was applicable to the particular situation for which the employee sought administrative leave.
The Authority also has interpreted these same FPM provisions to find that, as agencies have discretion to grant administrative leave to their employees in certain situations for brief periods of time, management can negotiate over how it will exercise that discretion. See National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 41 FLRA 1106, 1126 (1991) (BATF), petition for review dismissed, 953 F.2d 687 (D.C. Cir. 1992); U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C. and National Immigration and Naturalization Service Council, Local 46, American Federation of Government Employees, AFL-CIO, 48 FLRA 1269, 1276 (1993). The Authority has found grants of administrative leave to be appropriate, or a negotiable condition of employment, in a variety of situations including: time off in connection with blood donation, American Federation of Government Employees, Local 1345 and U.S. Department of the Army, Headquarters, Fort Carson, et al., 48 FLRA 168, 182 (1993); leave for employees who are prevented from performing duties due to circumstances beyond their control, American Federation of Government Employees, Local 2902 and U.S. Department of the Army, Army Garrison, Fort A.P. Hill, Virginia, 44 FLRA 3 (1992) (Provision 1); periods of holiday shutdown, National Federation of Federal Employees, Local 2119 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 42 FLRA 993 (1991); and participation in counseling and/or treatment sessions relating to an agency's drug testing program, BATF, 41 FLRA at 1126-27.(10)
In sum, our review of the FPM and the decisions interpreting those provisions leads us to conclude that the Respondent had discretion under the FPM to grant administrative leave for employee birthdays.(11) We are persuaded by the foregoing analysis that: (1) OPM gave agencies discretion to determine when administrative leave was appropriate and provided illustrative guidance to assist the agencies in their deliberations; and (2) agencies were expected to exercise their judgment in determining the situations for which administrative leave was appropriate.(12) In reaching our result in this case, we note, as did the Comptroller General in upholding the grant of time off as a holiday good-will gesture, that "[t]he controlling issue here is not the prudence of the release from duty order, but rather, the validity and effect of that order." 64 Comp. Gen. at 172. Our conclusion should not be read as finding prudent a practice that provides administrative leave for employee birthdays.
B. A Retroactive Bargaining Order Is Appropriate to Remedy the Unfair Labor Practice
We find, for the reasons explained below, that a status quo ante remedy is not appropriate in the circumstances of this case.(13) The purpose of a status quo ante remedy is to place parties, including employees, in the positions they would have occupied had there been no unlawful conduct. E.g., U.S. Department of Labor, Washington, D.C., 44 FLRA 988, 996-97 (1992); U.S. Department of the Air Force, Griffiss Air Force Base, Rome, New York, 37 FLRA 570, 580 (1990) (Griffiss Air Force Base), enforced, 949 F.2d 1169 (D.C. Cir. 1991). In this case, however, it is not possible to do so because it is not possible to recreate events that have already transpired. That is, the employee birthdays for which administrative leave was not granted have already occurred. Accordingly, it is not possible, at this time, to provide time off so that those employees can commemorate past birthdays.
It is well established that the Authority has broad discretion under the Statute to fashion appropriate remedies for unfair labor practices. National Treasury Employees Union v. FLRA, 910 F.2d 964 (D.C. Cir. 1990) (en banc). In addition, as the criteria enumerated in FCI are not all-inclusive, the Authority may rely on "other things" in determining whether, in any given situation, such a remedy is appropriate. Federal Deposit Insurance Corporation, Washington, D.C., 48 FLRA 313, 329 (1993) (citing FCI, 8 FLRA at 606), petition for review denied sub nom. FDIC v. FLRA, No. 93-1694 (D.C. Cir. Dec. 22, 1994). In exercising that discretion, the Authority will not order remedies that are meaningless, as a status quo ante remedy would be in this case. E.g., U.S. Department of the Treasury, Customs Service, Washington, D.C., 38 FLRA 770, 797-98 (1990).
On the other hand, we do not countenance any disregard of bargaining obligations required by the Statute. There is no question that the Respondent's failure to notify the Union of the termination of the practice deprived the Union of an opportunity to bargain before employees were disadvantaged and at a time when negotiations would have been more meaningful. Indeed, the Respondent admits that it failed to meet its bargaining obligations. Agency's Brief at 4. In our view, a bargaining order that gives retroactive effect to the agreement reached by the parties is appropriate. Such an order permits the parties to determine--through negotiations--the best way to provide relief for employees who were adversely affected by the Respondent's unlawful refusal to bargain. As the Authority stated in Griffiss Air Force Base, a retroactive bargaining order "is designed to remedy the effects of [an] unfair labor practice[] on individual employees, a fundamental purpose of the Statute." 37 FLRA at 582. In directing the parties to bargain, we expect that the Respondent will make every effort to redress employees who were harmed by the Respondent's unlawful conduct. We further expect that if the parties cannot reach agreement they expeditiously will seek assistance from the Federal Service Impasses Panel.(14)
V. Order
Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Statute, the Department of Veterans Affairs Medical Center, Asheville, North Carolina, shall:
1. Cease and desist from:
(a) Unilaterally discontinuing the practice of granting employees administrative leave for their birthdays without notifying the American Federation of Government Employees, Local 446, AFL-CIO, the exclusive representative of bargaining unit employees, and affording it an opportunity to bargain on the impact and implementation of the change.
(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Upon request of the American Federation of Government Employees, Local 446, AFL-CIO, bargain concerning the impact and implementation of the discontinuation of the practice of granting employees administrative leave for their birthdays, and apply retroactively the results of such bargaining.
(b) Post at the Medical Center, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director of the Medical Center, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Regulations, notify the Regional Director, Atlanta Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Department of Veterans Affairs Medical Center, Asheville, North Carolina violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.
We hereby notify bargaining unit employees that:
WE WILL NOT unilaterally discontinue the practice of granting employees administrative leave for their birthdays without notifying the American Federation of Government Employees, Local 446, AFL-CIO, the exclusive representative of bargaining unit employees, and affording it an opportunity to bargain on the impact and implementation of the change.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL, upon request of the American Federation of Government Employees, Local 446, AFL-CIO, bargain concerning the impact and implementation of the discontinuation of the practice of granting employees administrative leave for their birthdays, and apply retroactively the results of such bargaining.
_______________________
(Agency)
Dated:____________ By:_______________________
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Atlanta Regional Office, Federal Labor Relations Authority, whose address is: Marquis Two Tower, Suite 701, 285 Peachtree Center Ave., Atlanta, GA 30303-1270, and whose telephone number is: (404) 331-5212.
APPENDIX
The relevant portions of Subchapter 11, entitled "Excused Absence" provided as follows:
11-1 Summary. This subchapter provides guidance on the granting of excused absence. It is not intended to be a comprehensive index of all instances in which excused absence may be granted, but rather to serve as a guide for the administration of such requests. . . .
. . . .
11-3 Policy/Guidance - Excused absence may be granted in limited circumstances which should--
a. be directly related to the employing agency's mission;
b. enhance the professional development or skills of the employee in his or her current position; or
c. be officially sponsored/sanctioned by the head of the employing agency.
. . . .
11-6 Procedures. The following guidelines are offered for agencies to use when administering the granting of excused absence. . . .
a. Registration and Voting. . . .
b. Military Funerals. . . .
c. Agency Determinations. Agencies generally determine the situations in which they will excuse employees from duty. The following are examples of recurring situations which may warrant excused absence and for which agencies may have a written policy or may delegate decisions to supervisors.
(1) Blood Donation. Employees who make blood donations may be granted excused absence to travel to the donation site and/or to recover.
(2) Taking examinations. Employees who take examinations required by their present positions, including reexaminations, may be granted excused absence.
(3) Tardiness and Brief Absences. Unless an agency establishes a minimum charge of less than 1 hour, or establishes a different minimum charge through negotiations, the minimum charge for leave is 1 hour and additional charges are in multiples thereof. Absence from duty of less than an hour and tardiness may be excused when reasons appear to be adequate to the supervisor under procedures prescribed by the agency. Otherwise, the absence may be compensated for by additional work time or may be charged against any earned compensatory time or may be charged to annual leave, leave without pay (with the employee's consent), or absence without leave, as appropriate. (See 5 CFR 630.205)
(4) Conferences or Conventions. Employees may be granted excused absence to attend conferences or conventions when attendance will serve the best interests of the Federal service. Excused absence may be restricted to those situations in which the employee is an official representative of the agency or is a contributor on the agenda.
(5) Special Events. Individual employees may be granted excused absence to participate in civil activities which the Government is interested in recognizing or encouraging. Agency heads should make these decisions on a case-by-case basis.
(6) Physical Fitness. Excused absence may be granted for short periods for participating in officially sponsored and administered physical fitness programs. . . .
(7) Volunteer Activities. Employees may be granted excused absence for short periods of time to participate in volunteer activities that are (a) mission-related, (b) officially sponsored or sanctioned by the employing agency, or (c) enhance the professional development and/or skills of employees in their current positions. . . .
Member Armendariz' separate opinion:
I write separately to state my agreement with the Respondent's contention that it was required to change its past practice of granting employees 4 hours of time off with pay for their birthdays because that practice was not authorized by Federal Personnel Manual (FPM) chapter 630, subchapter 11, and, therefore, was illegal.(1)
Under the FPM, an agency may grant administrative leave (2) in limited circumstances which should: (1) be directly related to the agency's mission; (2) enhance the professional development or skills of employees in their current position; or (3) be officially sponsored/sanctioned by the agency head. FPM chapter 630, subchapter 11-3. Agency heads have authority to grant administrative leave in limited circumstances for the benefit of the agency's mission or a Government-wide recognized and sanctioned purpose. Id., subchapter 11-5. The granting of administrative leave is restricted to the general circumstances described in the FPM. National Federation of Federal Employees, Local 2119 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 49 FLRA 151, 158 (1994) (Rock Island Arsenal). Thus, in order to find that administrative leave is consistent with FPM chapter 630, subchapter 11, the purpose for which the leave is sought must bear some relationship to the situations described in subchapter 11 for which an excused absence may be appropriate. Id.
I fail to see how a past practice of granting employees administrative leave for their birthdays is consistent with the foregoing principles. If administrative leave for employees' birthdays is permissible under the FPM, it is difficult to envision an event for which administrative leave would not be permissible. Moreover, if an agency's authority to grant administrative leave is so open-ended as to permit employees to take time off with pay for their birthdays, it is not clear why it was necessary for OPM to provide guidance in the first place regarding the circumstances for which administrative leave was appropriate.(3) In my view, interpreting the FPM provisions in this manner renders them meaningless.(4)
Consequently, I would find that the Respondent's practice of granting 4 hours of administrative leave for employees' birthdays was not authorized by the FPM.(5) Based on that finding and consistent with my dissent in General Services Administration, National Capitol Region, Federal Protective Service Division, Washington, D.C., 50 FLRA 728, 742 (1995), reversed and remanded sub nom. General Services Administration v. FLRA, No. 95-1498 (D.C. Cir. June 14, 1996), I would not order a status quo ante remedy in this case because such a remedy would be inconsistent with applicable Government-wide regulation. However, as it is undisputed that the Respondent violated the Statute by failing to bargain over the impact and implementation of its decision to cancel the practice of granting administrative leave for employees' birthdays, a remedy is warranted. See id. at 741. In the circumstances of this case, I believe that an order requiring the Respondent to cease and desist from its unlawful conduct and to post a notice would constitute a meaningful remedy and I would so order. See, for example, 56th Combat Support Group (TAC), MacDill Air Force Base, Florida, 44 FLRA 1098, 1104 (1992).(6)
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
| DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER, ASHEVILLE,
NORTH CAROLINA Respondent |
|
| and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 446, AFL-CIO Charging Party |
|
Ms. Bonnie J. Eareckson
For the Respondent
Linda J. Norwood, Esquire
For the General Counsel
Mr. John B. Roten, Sr.
For the Charging Party
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
The Complaint and Notice of Hearing in this case issued on April 18, 1994, and was served by certified mail on Respondent on April 18, 1994, addressed to Mr. Philip Lenowitz, Labor Relations Specialist, Department of Veterans Affairs, Medical Center, Asheville, North Carolina 28805-2087. The Complaint alleged that in December, 1992, Respondent ". . . discontinued the past practice of granting time off with pay for birthdays for employees in the Medical Administration Service" without providing the Charging Party, the exclusive representative, "notice and an opportunity to bargain on the impact and implementation of the change in past practice." The Complaint stated, inter alia, that: "If the Respondent does not file an answer, the Authority will find that the Respondent has admitted each allegation. . . ."; and that, "An answer filed by mail must be mailed and postmarked by May 16, 1994. . . ." No answer was filed and on June 13, 1994, General Counsel filed with the Regional Director a Motion for Summary Judgment. By Order dated June 13, 1994, the Regional Director for the Atlanta Region, pursuant to § 2423.22(b) of the Authority's Regulations, 5 C.F.R. § 2423.22(b), referred the Motion for Summary Judgment to the Chief Administrative Law Judge and by Order dated June 22, 1994, the Chief Administrative Law Judge gave all parties further notice of the referral of General Counsel's Motion for Summary Judgment and notified all parties that, "Any pleadings or briefs . . . must be filed in this office by July 7, 1994. The record will then be closed. . . ."
The American Federation of Government Employees, Local 446, AFL-CIO, the Charging Party (hereinafter "Union"), filed a response, entitled "Pre Hearing Brief for Motion for Summary Judgment", dated June 27, 1994, and received on July 6, 1994. Attached to the Union's response, as Exhibit (C), is a letter the Union had sent to the Regional Director on June 22, 1994, in which the Union urged that a status quo ante remedy should be sought. On June 27, 1994, General Counsel, pursuant to § 2423.22(a) of the Authority's Rules and Regulations, 5 C.F.R. § 2423.22(a), filed an Amendment to her Motion for Summary Judgement to request a status quo ante and make whole order. By Order also dated June 27, 1994, the Regional Director referred General Counsel's Amendment to Motion for Summary Judgment to the Chief Administrative Judge, which was received on July 1, 1994. On July 5, 1994, Respondent changed the designation of its representative in this matter from Mr. Philip Lenowitz to Ms. Bonnie J. Eareckson and on the same date filed "Agency Brief" which was received on July 5, 1994, in response to the Order of June 22, 1994. Respondent's position is that the practice in the Medical Administration Service of permitting four hours of absence from duty for an employee's birthday, ". . . was illegal and necessarily stopped." (Agency Brief, p.4) and concludes, "Accordingly, the Agency requests that the Judge find the issuance of a cease and desist order and a notice posting as sufficient remedy in the instant case." (id., p.5).
No further response having been filed, the record was closed and the matter duly assigned to the undersigned for decision.
Findings of Fact
1. The Complaint was duly served on Respondent and no Answer to the Complaint was ever filed. It is true that Respondent replied twice in connection with the investigation of the charge, first, on May 20, 1993, and second on August 23, 1993, (Agency Brief, Attachments Tabs 1 and 2); but the presentation of evidence and views during the course of the investigation of a charge, pursuant to § 2423.7 of the Rules and Regulations, 5 C.F.R. § 2423.7, is no substitute for an answer, required by § 2423.13 of the Rules and Regulations, 5 C.F.R. § 2423.13. In its Brief, Respondent has stated no good cause why, in view of its failure to answer or otherwise plead, the allegations of the Complaint should not be admitted. To the contrary, Respondent admits the gravamen of the Complaint as follows: "The Agency regrettably agrees that it did, indeed, fail to meet its obligation to negotiate impact and implementation with the exclusive representative . . ." (Agency Brief, p.4). Accordingly, the following are material admitted facts, as set forth in the Complaint:
a. The American Federation of Government Employees, Local 446, AFL-CIO (the Union), is a labor organization under 5 U.S.C. § 7103(a)(4).
b. The Department of Veterans Affairs, Medical Center, Asheville, North Carolina (Respondent), is an agency under 5 U.S.C. § 7103(a)(3).
c. The Regional Director for the Atlanta Region of the Federal Labor Relations Authority issued the Complaint and Notice of Hearing in this case on April 18, 1994. The return receipt was signed by an agent of the Respondent and received by the Atlanta FLRA office on April 26, 1994.
d. The Union is the exclusive representative of a unit of employees appropriate for collective bargaining at the Respondent.
e. During the time period covered by this complaint, the following persons occupied the position opposite their names:
James A. Christian Medical Center Director
Jeff Moffitt Chief, Medical Administration Service
Lynn Hardin Assistant Chief, Medical Administration Service
f. During the time period covered by this complaint, the persons named in paragraph e were supervisors or management officials under 5 U.S.C. § 7103(a)(1) and (11).
g. During the time period covered by this complaint, the persons named in paragraph e were acting on behalf of the Respondent.
h. In December 1992, the Agency discontinued the past practice of granting time off with pay for birthdays for employees in the Medical Adminis- tration Service.
i. The Respondent implemented the change described in paragraph h without providing the Union with notice and an opportunity to bargain on the impact and implementation of the change in past practice.
2. In her Memorandum In Support of Motion for Summary Judgment, dated June 13, 1994, General Counsel had stated, in part, as follows:
"In the instant case, management had a practice of allowing employees to take time off from work on their birthdays. Counsel for the General Counsel does not contend this practice was appropriate under government-wide regulations. On the contrary, this practice does not seem to fit into any of the allowable categories for administrative time. . .
"As a remedy, the General Counsel requests a cease and desist order and a notice posting signed by the Respondent's Center Director. . . ." (Memorandum In Support, p.3, June 13, 1994).
3. In her Memorandum In Support of the Amended Motion for Summary Judgment, dated June 27, 1994, General Counsel states, in part, as follows:
"In its original brief, the General Counsel requested that, as a remedy, the deciding official issue a cease and desist order and a notice posting, signed by the Respondent's Center Director and posted all official bulletin boards at the Center. However, subsequent to filing this brief, the Charging Party requested that Counsel for the General Counsel consider a status quo ante and make whole remedy. After researching the issue more, Counsel for the General Counsel believes the Charging Party's request has merit and now requests that the Judge consider granting a status quo ante and make whole order in this matter." (Memorandum In Support of Amended Motion, p.1, June 27, 1994).
4. Respondent had stated in its letter of May 20, 1993, during the investigation of the of the charge that the Chief of its Medical Administration Service, Mr. Jeff Moffitt, had granted four hours administrative leave on employees' birthdays; and that no other Service Chief at the Medical Center had, ". . . granted such an 'award.'" (Agency Brief Attachment, Tab 2).
Conclusions
By its failure to answer the Complaint, Respondent admitted that it discontinued the past practice of granting time off with pay for employees in its Medical Administration Service and Respondent, both by its failure to answer, by which it admitted the allegation of the complaint that it implemented the discontinuance of that past practice without providing the Union notice an opportunity to bargain on the impact and implementation of the change in past practice, and by its admission in its response to the Motion for Summary Judgment, that agreed, ". . . that it did, indeed, fail to meet its obligation to negotiate impact and implementation . . . " (Agency Brief, p.4), made it clear that by uni- laterally implementing the change in past practice it had violated §§ 16(a)(1) and (5) of the Statute as alleged. Moreover, Respondent, ". . . requests . . . the issuance of a cease and desist order and a notice posting . . . ." (Agency Brief, p.5). Accordingly, there being no disputed facts, this case is appropriate for decision on General Counsel's Motion for Summary Judgment.
The only question to be resolved is the remedy, i.e., whether there should be a status quo ante and make whole remedy or merely a cease and desist order with posting, and the remedy available turns, in the first instance, on whether the past practice in Medical Administration Service of granting fours hours pay for an employee's birthday was illegal. Respondent asserts the practice was illegal, inter alia, because, (a) "Excused absence, by its historic use, is a nonroutine granting of a limited amount of time during duty hours for such purposes as excusing tardiness, voting and registration . . ." (Agency Brief, p.1); (b) that, ". . . the granting of time off from duty for an employee's birthday fails to meet the criteria prescribed in VA Directive MP-5, Part I, Chapter 630, section 21 . . . entitled 'Excused Absences'. This directive prescribes that: (1) The activity is considered to be of substantial benefit to the VA in accomplishing its general mission or one of its specific functions, or (2) The activity will clearly enhance an employee's ability to perform the duties of the position he or she presently occupies or may be expected to prospectively occupy . . ." (Agency Brief, p.2); or (c) that the granting ". . . four (4) hours of absence from duty on the birthday itself or . . . on a day during the week of his/her birthday . . . is very similar to the granting of holidays . . . [and] holidays are so designated only by Federal statute or Executive Order. Accordingly, no local authority at this facility is empowered to designate a holiday." (Agency Brief, p.3).
Respondent's arguments are interesting but they do not establish that the practice of granting four hours administrative leave for an employee's birthday was illegal. Aside from its general acceptance, does the granting of authorized absence for voting and registration benefit the VA in accomplishing its mission or enhance an employee's ability to perform his or her duties? Perhaps, perhaps not. What "activity is considered to be of substantial benefit to the VA in accomplishing its general mission", or what "activity will clearly enhance an employee's ability to perform" his or her duties, is not set in concrete and different people could well have different views. I do not know what Respondent's practice has been, but I am aware that other Departments and Agencies regularly grant excused absence from duty for a variety of activities such as: Christmas parties; awards ceremonies; welcoming the arrival a new Department or Agency official; etc., which are not examples specifically enumerated in MP-5, Part I, Chapter 630. Necessarily, there is an area of discretion left to determine what is considered to be of substantial benefit in accomplishing VA's mission and the exercise of discretion, however much another might disagree, does not make a decision to grant excused absences unlawful.
As noted above, General Counsel initially concluded that the practice of allowing time off for an employee's birthday, ". . . does not seem to fit into any of the allowable categories for administrative time. . . ."; but following Charging Party's request that General Counsel consider a status quo ante and make whole remedy, concluded that she ". . . believes the Charging Party's request has merit. . . ." and asserts that, ". . . the Authority has found that management may use its discretion to grant short periods of administrative leave. . . ." (General Counsel's Memorandum In Support of Amendment of Motion for Summary Judgment, p.2). National Treasury Employees Union, 41 FLRA 1106 (1991), rev'w dismissed, 953 F.2d 687 (D.C. Cir. 1992), was a negotiability case which, in part, involved the Union's proposal that employees participating in the Employee Assistance Program for counseling and/or treatment be granted administrative leave. The Agency asserted, inter alia, that the proposal conflicted with a Government-wide regulation, ". . . Federal Personnel Manual Supplement 990-2, chapter 630, subchapter 11-5, attachment 2, indicates the usual absences for which administrative leave may be granted. While the Agency admits that the listing is not exhaustive, the Agency argues that '"a grant of administrative leave for an extended period of time is not appropriate unless it is in furtherance of an agency function.'" (41 FLRA at 1123). The Authority stated,
"The Authority has consistently construed those portions of the Federal Personnel Manual (FPM) concerning administrative leave (chapter 630, subchap. 11-5, and FPM Supplement 990-2, chap. 630, subchap. S 11-5) as providing that the head of an agency has discretion to grant administrative leave to employees of the agency in certain situations for brief periods of time. . . ." (id. at 1126).
See, also National Federation of Federal Employees, Local 2119, 42 FLRA 993, 996-998 (1991); National Federation of Federal Employees, 21 FLRA 1105, 1114, (1986). On the basis of the foregoing, I conclude that inasmuch as the VA regulation (MP-5, Part I, Chapter 630), which mirrors FPM Manual, Chapter 630 subchapter 11-5 and FPM Supplement 990-2, Chapter 630 subchapter S 11-5, provides discretion to management to grant administrative leave for brief periods of time, the practice of granting four hours administrative leave for an employee's birthday was not illegal.
Where management's right to change a condition of employment is not questioned, as in the present case, in order to justify a return to the status quo ante to remedy a failure to bargain over the impact and implementation of the change,
". . . the Authority will, on a case-by-case basis, 'carefully balanc[e] the nature and circumstances of the particular violation against the degree of disruption in government operations that would be caused by such a remedy.' Federal Correctional Institution, 8 FLRA 604, 606 (1982) (FCI). Under the criteria set forth in FCI, the Authority considers, among other things, (1) whether, and when, notice was given to the union by the agency; (2) whether, and when, the union requested bargaining; (3) the willfulness of the activity's conduct in failing to discharge its bargaining obligations under the Statute; (4) the nature and extent of the impact experienced by adversely affected employees; and (5) whether, and to what degree, a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations. Id. at 606." Federal Deposit Insurance Corporation, Washington, D.C. 48 FLRA No. 27, 48 FLRA 313, 329 (1993).
Here, Respondent gave the Union no notice of the termination of the practice and afforded no opportunity to bargain on the impact and implementation of the change. Respondent's action was unilateral. The employees of the Medical Administration Service lost no pay, but each suffered the loss of four hours administrative leave, a significant benefit. Respondent has not suggested, much less shown, that a status quo ante remedy would either disrupt or impair the efficiency and effective- ness of its operations. To the contrary, Respondent states only, ". . . The Agency feels that this remedy is inappro- priate and requests the Judge also consider that the Agency attempted to show fairness when it did not retroactively charge leave to those employees when it discontinued the illegal practice at issue. Further, the charging party has failed to show that the Agency truly harmed either the employees or the labor organization." (Agency Brief, p.4). For reasons set forth above, the practice was not illegal and, clearly, both the employees, who suffered the loss of a benefit granted them, and the Union, which was deprived of its statutory right to negotiate the impact and implementation of the change of an established condition of employment, were truly harmed. A status quo ante remedy is appropriate and necessary to fully remedy Respondent's failure and refusal to give the Union notice and an opportunity to negotiate the impact and implementation of its discontinuance of an established practice in Medical Administration Service.
While a status quo ante remedy is appropriate in this case, I do not believe it should be retroactive to December, 1992. The Charge was filed on May 7, 1993, but the Complaint did not issue until April 18, 1994. Under the circumstances, it would be inequitable to require Respondent to grant administrative leave lost by employees in the Medical Administration Service both for 1993 and 1994, since, had the Complaint issued in 1993 with the same failure to answer, etc., impact and implementation bargaining, realistically, would not have extended beyond 1993. Accordingly, Respondent will be ordered to grant 4 hours administrative leave to each employee in its Medical Administrative Service for each employee's birthday which occurred before the date of the Order herein in calendar year 1994, and after the date of this Order until good faith bargaining on the impact and implementation of the discontinuance of the practice has been completed.
General Counsel's Motion for Summary Judgment, as amended, is granted and it is recommended that the Authority adopt the following:
ORDER
Pursuant to § 2423.29 of the Rules and Regulations, 5 C.F.R. § 2423.29, and § 18 of the Statute, 5 U.S.C. § 7118, it is hereby ordered that the Department of Veterans Affairs, Medical Center, Asheville, North Carolina, shall:
1. Cease and desist from:
(a) Failing and refusing to provide the American Federation of Government Employees, Local 446, AFL-CIO (hereinafter, "Local 446"), the exclusive representative of certain of its employees, with prior notice of changes in the conditions of employment of employees in the bargaining unit represented by Local 446.
(b) Refusing to bargain with Local 446 concerning discontinuance of the practice in its Medical Administration Service of granting administrative leave for birthdays.
(c) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Upon request of Local 446, negotiate concerning the impact and implementation of Respondent's termination of the practice in the Medical Administration Service of granting administrative leave for birthdays.
(b) Reinstate the practice in the Medical Administration Service of granting four hours administrative leave for each employee's birthday and maintain that practice until completion of good faith bargaining on the impact and implementation of the discontinuance of that practice.
(c) Grant four hours administrative leave to each employee in the Medical Administration Service whose birthday has occurred before the date of this Order during the calendar year 1994, and after the date of the Order, grant each employee in the Medical Administration Service four hours administrative leave whose birthday occurs after the date of the Order until good faith bargaining on the impact and implementation of the discontinuance of that practice has been completed.
(d) Post at its facilities at the Medical Center, Asheville, North Carolina, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director of the Medical Center, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.
(e) Pursuant to section 2423.30 of the Regulations, 5 C.F.R. § 2423.30, notify the Regional Director, Atlanta Region, Federal Labor Relations Authority, 1371 Peachtree Street, N.E., Suite 122, Atlanta, Georgia 30309-3102, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
___________________________
WILLIAM B. DEVANEY
Administrative
Law Judge
Dated: September 30, 1994
Washington, DC
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to provide the American Federation of Government Employees, Local 446, AFL-CIO (hereinafter, "Local 446"), the exclusive representative of our employees, with prior notice of changes in the conditions of employment of employees in the bargaining unit represented by Local 446.
WE WILL NOT refuse to bargain with Local 446 concerning discontinuance of the practice in our Medical Administration Service of granting administrative leave for birthdays.
WE WILL, upon request of Local 446, negotiate concerning the impact and implementation of our termination of the practice in the Medical Administration Service of granting administrative leave for birthdays.
WE WILL reinstate the practice in the Medical Administration Service of granting four hours administrative leave for each employee's birthday and WE WILL MAINTAIN that practice until completion of good faith bargaining on the impact and implementation of the discontinuance of that practice.
WE WILL GRANT four hours administrative leave to each employee in the Medical Administration Service whose birthday has occurred before the date of this Order during the calendar year 1994, and after the date of this Order, WE WILL GRANT each employee in the Medical Administration Service four hours administrative leave whose birthday occurs after the date of this Order until good faith bargaining on the impact and implementation of the discontinuance of that practice has been completed.
______________________________
(Activity)
Dated: _________ By: ______________________________
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the Regional
Director of the Federal Labor Relations Authority, Atlanta Region, whose
address is:
1371 Peachtree Street, N.E., Suite 122, Atlanta, Georgia
30309-3102, and whose telephone number is: (404) 347-2324.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
Authority's Footnotes Follows:
1. Member Armendariz' separate opinion appears at the end of this decision.
2. Although the Union's brief was not entitled as an exception, it was filed during the time period for filing timely exceptions to the Judge's decision and will be considered as such.
3. FCI states, in relevant part:
[T]he appropriateness of a status quo ante remedy must be determined on a case-by-case basis, carefully balancing the nature and circumstances of the particular violation against the degree of disruption in government operations that would be caused by such a remedy. Accordingly, in determining whether a status quo ante remedy would be appropriate in any specific case involving a violation of the duty to bargain over impact and implementation, the Authority considers, among other things[:] (1) whether, and when, notice was given to the union by the agency concerning the action or change decided upon; (2) whether, and when, the union requested bargaining on the procedures to be observed by the agency in implementing such action or change and/or concerning appropriate arrangements for employees adversely affected by such action or change; (3) the willfulness of the agency's conduct in failing to discharge its bargaining obligations under the Statute; (4) the nature and extent of the impact experienced by adversely affected employees; and (5) whether, and to what degree, a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations.
8 FLRA at 606 (footnote omitted).
4. The General Counsel notes that the delay in issuing the complaint was due to the vacancy in the General Counsel's position, which prevented the issuance of any complaints.
5. The relevant provisions in the FPM relating to administrative leave were abolished as of December 31, 1994. The Judge's decision issued, and the parties' briefs to the Authority were filed, before that date.
6. The Respondent did not specify whether it was referring to the right to assign employees or assign work. However, as all the Authority decisions cited by the Respondent concerned the assignment of work under section 7106(a)(2)(B) of the Statute, we assume that the Respondent's arguments involve that management right only.
7. The complaint covers employees in the Respondent's Medical Administration Service only. The Union represents a broader unit of the Respondent's employees.
8. Subchapter 11 is set forth in the Appendix. As noted above, see note 5, that provision was abolished effective December 31, 1994. It is unnecessary to decide whether the abolishment of the FPM can be applied retroactively under the holding in Landgraf v. USI Film Products, ___ U.S. ___, 114 S. Ct. 1483, 1501-05 (1994) because the result we reach in this case would be the same regardless of whether the FPM was applied. See U.S. Department of the Treasury, Internal Revenue Service and National Treasury Employees Union, 51 FLRA 310, 319-20 n.9 (1995). As we explain below, the Respondent had discretion while the FPM was in effect to grant brief periods of excused absence in connection with employee birthdays and no basis is argued or apparent on which to conclude that such discretion was eliminated by abolishment of the FPM.
9. In the cases cited the Comptroller General determined that the use of administrative leave for the following activities was not appropriate consistent with the FPM: 40 hours of leave for a civilian employee to participate in a chess tournament as a representative of the military installation to which the employee was assigned (B-17062, Aug. 4, 1972); leave in the amount of 14-31 days for employees to prepare for bar examinations (B-156287, Feb. 5, 1975); slightly more than 3 weeks of leave for an employee to participate in Pan American games as a member of a team representing the United States (B-185128, Dec. 3, 1975); 2 days of leave for an employee who was prevented from returning to work following a vacation due to snow conditions at the vacation site (B-193389, Nov. 29, 1978); and leave for excess travel time to a training site occasioned by employees' use of privately owned vehicles rather than common carrier, which was deemed more advantageous by the agency (56 Comp. Gen. 865 (1977)).
10. The Authority also has stated that proposals seeking administrative leave "must bear some relationship to the situations described in subchapter 11," National Federation of Federal Employees, Local 2119 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 49 FLRA 151, 158 (1994), or that administrative leave was "restricted to the circumstances described in the FPM[,]" International Organization of Masters, Mates and Pilots and U.S. Department of the Navy, Chief of Naval Operations, Washington, D.C., 47 FLRA 218, 223 (1993). Consistent with our decision in this case, and the line of Authority precedent cited in the text above, we find that there was no basis in either the FPM or Comptroller General decisions interpreting the FPM provisions to limit the ability of agencies to determine the appropriate uses of administrative leave. Authority decisions to the contrary will no longer be followed. See also American Federation of Government Employees, AFL-CIO, National Council of SSA Field Operations Locals and Social Security Administration, 25 FLRA 622 (1987) (Proposal 3), petition for review denied sub nom. AFGE, AFL-CIO, National Council of SSA Field Operations Locals v. FLRA, 836 F.2d 1408 (D.C. Cir. 1988); American Federation of Government Employees, Local 2094, AFL-CIO and Veterans Administration Medical Center, New York, New York, 22 FLRA 710 (1986) (Proposal 7), aff'd as to other matters sub nom. AFGE, AFL-CIO, Local 2094 v. FLRA, 833 F.2d 1037 (D.C. Cir. 1987).
11. No one disputes that the amount of leave that would be granted--4 hours per employee birthday--is consistent with the requirement in the FPM that excused absences be granted for brief periods of time. Cf. American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870, 898 (1986) (provision that would have given each employee 8 days of administrative leave found contrary to FPM because, in part, the period of time for which the leave was sought did not constitute "a brief period of absence from duty for appropriate reasons which is within the Agency's discretion to grant.").
12. Because, in our view, the meaning of the FPM is not ambiguous, we see no need to further delay resolution of the issues raised in this case by requesting an advisory opinion from OPM regarding its interpretation of the regulations pertaining to excused absences. First, as explained above, the regulations clearly gave agencies the right to determine the situations for which employees would be excused from duty. Second, the regulations are no longer in effect.
13. As the complaint alleged a failure to bargain over the impact and implementation of the discontinuation of the leave policy, it was appropriate for the Judge to apply FCI. Generally, when management changes a condition of employment without fulfilling its obligation to bargain over the decision to make the change, a status quo ante remedy is ordered, in the absence of special circumstances. E.g., Federal Deposit Insurance Corporation, 41 FLRA 272, 279 (1991), enforced, 977 F.2d 1493 (D.C. Cir. 1992).
14. In view of our disposition of this case, we need not discuss further the Respondent's assertion that the Judge's status quo ante remedy violates management's right to assign work. We also deny the Union's request that the remedy be extended to the entire bargaining unit because: (1) only a limited number of bargaining unit employees, rather than the entire unit, had been granted administrative leave in connection with their birthdays; and (2) the complaint alleged an unlawful termination of the policy in the Respondent's Medical Administration Service, the only organizational component in which the policy apparently existed. See FDIC, 48 FLRA at 328; Department of the Air Force, 343RD Combat Support Group, Eielson Air Force Base, Alaska, 39 FLRA 609, 616 (1991) (Member Talkin dissenting).
Member Armendariz' separate Opinion Footnotes Follow:
1. Although FPM chapter 630, subchapter 11 was abolished on December 31, 1994, I believe that it applies in this case, consistent with the principles set forth in U.S. Department of Transportation, Federal Aviation Administration, Little Rock, Arkansas, 51 FLRA 216, 224-25 (1995), citing Landgraf v. USI Film Products, U.S. , 114 S. Ct. 1483, 1501-05 (1994).
2. The term "administrative leave" is not officially recognized in statute or Office of Personnel Management (OPM) regulation; however, it refers to an excused absence from duty without loss of pay and without charge to leave. FPM chapter 630, subchapter 11-7(a). "Excused absence" is an absence from duty, administratively authorized, without loss of pay and without charge to leave. Id. at subchapter 11-7(b).
3. The numerous decisions of the Comptroller General addressing administrative leave do not appear to be entirely consistent with each other. In any event, I do not read those decisions as providing agencies an open-ended authority to grant administrative leave that includes the circumstances in this case.
4. If I thought that there was any ambiguity in the FPM with regard to whether it authorized agencies to grant employees time off for their birthdays, I would seek OPM's views on this issue, pursuant to 5 U.S.C. § 7105(i), before making such a determination. Even though the FPM is no longer in effect, OPM remains empowered under 5 U.S.C. § 6311 to regulate the leave system governing Federal employment. At the very least, it would appear to be the appropriate course of action to obtain OPM's view on this issue before determining, as my colleagues do, that it is legal for an agency to have a practice of granting employees administrative leave for their birthdays.
5. The decisions of the Authority considering questions related to administrative leave have applied the FPM provisions to approve grants of administrative leave which are consistent with the limitations set forth therein and to disapprove grants that are not. Contrary to my colleagues' discussion in note 10 of their decision, I do not believe that those decisions are in error and I would continue to follow them. In my view, they support the conclusion that the practice of granting administrative leave for employees' birthdays is inconsistent with the FPM.
6. A cease and desist order and a notice posting was the remedy initially sought by the General Counsel in its motion for summary judgment. At that time, the General Counsel did not contend that the Respondent's practice of granting administrative leave for employees' birthdays was appropriate under Government-wide regulations and stated that, "[o]n the contrary, this practice does not seem to fit into any of the allowable categories for administrative time." General Counsel's memorandum in support of its motion for summary judgment at 3. However, because "[e]ven decisions to halt illegal practices require notice and the opportunity to bargain the impact and implementation of the decision[,]" id., the General Counsel sought a cease and desist order and a notice posting. Subsequently, the Charging Party requested that the General Counsel consider a status quo ante and make whole remedy. On consideration of that request and after further research, the General Counsel filed an amendment to its motion for summary judgment and took the position that the Respondent's past practice was legal. For the reasons stated above, I believe that the General Counsel's initial position was the correct one.