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60 FLRA No. 100
DEPARTMENT OF THE NAVY
NAVAL UNDERSEA WARFARE CENTER
OF SCIENTISTS AND ENGINEERS
OF GOVERNMENT EMPLOYEES
December 17, 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 an exception to an award of Arbitrator Sherrie Rose Talmadge 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 did not file an opposition to the Agency's exception.
After determining that the grievance was arbitrable, the Arbitrator sustained in part and denied in part the grievance alleging that the Agency erred in taking restored annual leave from four grievants.
For the following reasons, we deny the Agency's exception.
In 1999 and 2001, the grievant [n1] had annual leave restored when he failed to use accrued annual leave by the end of the leave year. [n2] Award at 3. Under 5 U.S.C. § 6304(d), forfeited annual leave may be restored in three situations: administrative error; exigencies of public business; and sickness of the employee. In order for forfeited annual leave to be considered for restoration, an employee must request use of the annual leave, in writing, "before the start of the third biweekly pay period prior to the end of the leave year." 5 C.F.R. § 630.308. The Agency instruction on absence and leave, incorporating the requirements from 5 U.S.C. § 6304 and 5 C.F.R. 630.308, states that annual leave must be requested "at least three pay periods prior to the end of the leave year before the forfeited annual leave can be considered for restoration" and that the leave may be restored in the same three situations. [n3] The Agency provided a yearly email reminding all employees of the requirements for restoring forfeited annual leave. Award at 4.
In 2002-2003, an audit service investigated the Agency's leave and record keeping. Id. The audit found that the Agency did not have "adequate time and attendance controls and practices, and did not adequately retain, properly approve, or consistently report accurate time and attendance records." See id. Specifically, the audit determined that there were cases where forfeited annual leave had been improperly restored. Id.
Based on the results of the audit, the Agency sent a letter, in April 2003, to the grievant explaining the audit results and stating that leave records were being reviewed. Id. In May 2003, the Agency informed the grievant of the specific amount his leave would be reduced. [n4] Award at 4-5. The May 2003, letter also informed the grievant of his right to dispute the action by submitting a written claim to the Agency, submitting a written claim to the Office of Personnel Management or filing a grievance. Id. at 7. The reduction in the grievant's leave balance was made during the last pay period in July. Id. at 7-8.
The Union filed a grievance regarding the reduction of annual leave. The parties were unable to resolve the grievance and the matter went to arbitration. The Arbitrator, adopting the Union's issues, stated the issues as: "was the grievance arbitrable[;] [i]f arbitrable, did the Agency err in taking away restored leave from the employee[;] [i]f so, what shall the remedy be?" Id. at 1. [ v60 p505 ]
The Arbitrator determined that the grievance was procedurally arbitrable because it was timely filed. Id. at 12-13. As to the merits of the grievance, the Arbitrator explained that the Agency objected to the inclusion of the grievant in the grievance because the grievant's position was not included in the bargaining unit. Id. at 15. According to the Arbitrator, the parties agreed that the issue of whether the grievant's position was included in the bargaining unit was not before the Arbitrator. Id. The Arbitrator explained that the grievant had been allowed to testify and any relevant findings would be applied "if subsequently his position is found to be included within the bargaining unit." See Award at 15. Based on this decision, the Arbitrator found that the Agency had provided the grievant with the requirements for restoration of forfeited leave and that the grievant had not timely submitted a leave request to have leave restored. Id. Therefore, the Arbitrator concluded that the Agency did not improperly reduce the grievant's annual leave. Id.
III. Agency's Exception
The Agency argues that the inclusion of the grievant, whose position is in dispute, was inappropriate and beyond the Arbitrator's authority. Exception at 4. The Agency explains that the negotiated grievance procedure specifically states that the procedure is available only to the parties to the agreement and unit employees. Id. at 5. The Agency explains that it challenged the grievant's inclusion in the grievance because his position had previously been determined to be outside the unit. Id.
According to the Agency, an arbitrator may not determine whether a grievant is part of the bargaining unit, "even if the question is raised as a collateral issue to a grievance otherwise properly brought under the collective bargaining agreement." See id. (citing United States Dep't of Veterans Affairs, Med. Ctr., Coatesville, Pa., 56 FLRA 966 (2000)). The Agency asserts that the Arbitrator derives authority from the agreement and the agreement cannot give the Arbitrator authority over an employee not covered by the agreement. Id. at 6. Therefore, the Agency contends the Arbitrator exceeded her authority by including the grievant, who the Agency alleges is not a member of the bargaining unit. Id.
IV. Analysis and Conclusions [n5]
The Agency misconstrues the Arbitrator's actions. The Arbitrator did not make any determination on the grievant's bargaining unit status. The Arbitrator specifically acknowledged that the grievant's bargaining unit status was not before her. Award at 15. In addition, the Arbitrator explicitly stated that any rulings as to this specific grievant only "would be applied if subsequently [the grievant] is found to be included within the bargaining unit." See id. Therefore, it is clear that the Arbitrator never determined that the grievant was a member of the bargaining unit, but rather made a ruling contingent on a future determination of the grievant's bargaining unit status. As a result, we deny the Agency's exception.
The Agency's exception is denied.
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Although the Agency states that the award fails to draw its essence from the agreement, we construe the exception as contending that the Arbitrator exceeded her authority and that the award is contrary to law given the standard of review cited by the Agency and the substance of the Agency's arguments. United States Dep't of the Air Force, 81st Training Wing, Keesler Air Force Base, Miss., 60 FLRA 425 (2004); United States Equal Employment Opportunity Comm'n, Baltimore Field Office, Balt., Md., 59 FLRA 688, 694 (2004). Based on the analysis below, it is irrelevant how the Agency's exception is construed.