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62 FLRA No. 21
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF DEFENSE
DEFENSE FINANCE AND
April 27, 2007
Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members [n1]
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Stephen Hayford filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition.
The Agency denied the grievant's request for restoration of use-or-lose annual leave. The Arbitrator sustained the Agency's action and denied the grievance.
For the following reasons, we deny the Union's exception.
II. Background and Arbitrator's Award
Shortly after the beginning of the calendar year, the grievant's supervisor instructed employees under her supervision to provide her with projections of their leave usage for the rest of that year. She explicitly directed that employees not request two consecutive weeks of leave during the Christmas and New Year's holidays so that there would be adequate staffing for that period.
Just prior to the November 28 deadline for scheduling use-or-lose leave, the grievant submitted requests for 104 hours of use-or-lose leave. The requests covered the dates December 20-23, December 27-30, and January 3-7. The grievant's supervisor granted the latter two requests and denied the first one. After disapproving the leave request, the supervisor spoke to the grievant and reminded her that there was time before the November 28 deadline to reschedule the disapproved leave. The supervisor subsequently met with the grievant on November 30, after the deadline for scheduling use-or-lose leave had passed, and advised her that there was still time to resubmit her leave request for different dates. The supervisor also informed her that if she did not reschedule the leave, it "could not be restored because the . . . deadline for restoration of `use or lose' leave had passed." Award at 3.
The grievant refused to reschedule her leave and she lost the 31 hours of leave that she had failed to reschedule. A grievance was filed alleging that the Agency's failure to restore the 31 hours of annual leave violated 5 U.S.C. § 6304(d). [n2] The grievance was not resolved and was submitted to arbitration.
B. Arbitrator's Award
The parties did not stipulate to the issues before the Arbitrator and the Arbitrator framed them as follows:
1. Is the instant Grievance procedurally arbitrable? If so,
2. Did the Agency's failure to restore the disputed 31 hours of "use or [lose]" annual leave to [the grievant] result in a violation of any relevant provision(s) of the Multi-Unit Master [ v62 p76 ] Agreement [(MUMA)], law or regulation? If so, what is the proper remedy?
Award at 4. [n3]
The Arbitrator noted at the outset that "annual leave is a right and not a privilege." Id. at 12. He also noted that, under Article 14, Section 1, requests for annual leave are to be approved consistent with the needs of the Agency. He found, in this regard, that the Agency had demonstrated "the existence of legitimate, staffing related reasons for it[s] decision not to permit . . . employees to take two consecutive weeks of annual leave" during the Christmas and New Year's holidays. Id. at 13.
The Arbitrator also found that when the grievant submitted her final annual leave requests, "she ignored the admonition that she was not to attempt to schedule annual leave during both weeks" of the holidays. Id. According to the Arbitrator, the reasons the supervisor provided for disapproving one of the requests "were reasonably related to maintaining the efficiency of the Agency and thus were consistent with the needs of the Agency." Id. Also, according to the Arbitrator, all employees were "treated the same" and the grievant "had no reason to expect that she would be allowed to take both weeks off." Id. The Arbitrator stated that the grievant's reasons for requesting leave as she did were not so "compelling as to oblige the Agency to reconsider the general rule that employees could not take leave" during both weeks of the holidays. Id.
According to the Arbitrator, the Agency "was not under an absolute obligation" to grant the grievant's request for leave from December 20-23. Id. In addition, the Arbitrator found that it was the grievant's "obduracy in the face of the denial of her annual leave request . . . that caused her to forfeit the 31 disputed hours [of] `use or lose' annual leave[.]" Id. at 13-14. The Arbitrator concluded that the Agency "did not commit administrative error when it subsequently failed to restore that forfeited leave," and, as a result, the Arbitrator denied the grievance. Id. at 14.
III. Positions of the Parties
A. Union's Exception
The Union contends that the Arbitrator's award is contrary to 5 U.S.C. § 6304(d). Under that statutory provision, the Union asserts, "a federal employee who timely requests approval for `use or lose' annual leave but [whose] request cannot be honored because of exigencies of the public business must be allowed to carry over her `use or lose' annual leave." Exception at 5 (citing Quillo v. United States, 229 Ct. Cl. 540 (Ct. Cl. 1981) (Quillo)). In this regard, the Union contends that the Agency disapproved the grievant's request because of mission-related reasons and that, when an agency is unable to "accommodate an employee's timely request for `use or lose' annual leave for legitimate mission-related reasons[,]" the agency's inability "must be regarded as an `administrative error' . . . qualifying the employee for restoration of her `use or lose' annual leave." Id. at 6 (referencing Matter of William D. Norsworthy, 57 Comp. Gen. 325 (1978) (Norsworthy)).
The Union maintains that the grievant "had no obligation to amend her request for annual leave so that all of her `use or lose' leave could be used." Id. According to the Union, if the grievant could not use that leave "in the manner most meaningful to her, and if she loses it after having made a timely request, it must be restored to her." Id. The Union maintains that once the grievant made a sufficient request to take leave, the employer must schedule the leave and, if it is unable to do so, then the leave must be restored to the employee. The Union asserts that there is no requirement that the employee agree to schedule the leave at a time other than that of her choosing. The Union claims that the Agency's failure to schedule the leave was administrative error warranting the restoration of leave to the grievant. The Union cites Matter of George A. Raub, Comptroller General Decision B-212548 (January 24, 1984) (Raub).
B. Agency's Opposition
The Agency maintains that annual leave "is not considered scheduled in advance within the meaning of [§] 6304(d)(1)(B), unless the supervisor approves the leave request in writing." Opposition at 2 (citing Matter of Rikka Pulliam, B-229228 (January 21, 1988)). The Agency asserts that because the grievant's supervisor denied the request for December 20-23, the grievant had never scheduled that leave in advance within the meaning of § 6304(d)(1)(B). Finally, the Agency argues that this case is distinguishable from the Comptroller General precedent cited by the Union because in that case a public exigency existed and in this case no such exigency was involved.
The Union argues that the Arbitrator's award is contrary to law. The Authority reviews questions of law [ v62 p77 ] 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 DOD, Dept's of the Army and 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. Id.
Under § 6403(a), an employee is able to carry over only 240 hours of accrued annual leave from one leave year to the next. Thus, consistent with applicable regulation, where the employee will have accrued more than 240 hours of annual leave by the end of the leave year, he or she must schedule and use that excess annual leave or it will be subject to forfeit. As relevant here, under § 6304(d)(1), forfeited annual leave may be restored if it is lost because of: (1) administrative error; (2) the exigencies of the public business, when the annual leave was scheduled in advance; or (3) sickness of the employee, when the leave was scheduled in advance.
When an employee timely and properly requests annual leave and the agency disapproves that request based upon workload considerations, the agency has an obligation to reschedule that leave so that the employee does not run the risk of forfeiture. See Norsworthy, 57 Comp. Gen. at 327. There is no discretion whether to schedule the leave or not. The agency must approve and schedule the leave either at the time requested by the employee or, if that is not possible because of the agency's workload, at some other time. Id. See also Matter of Jack V. Morkal, Comptroller General Decision B-232269.2 (1989) and Raub (scheduled leave cancelled because of workload restored); Raub (same); Matter of Alvin Schlossman, Comptroller General Decision B-197438 (1980) (if an employee timely submits an application for leave, his supervisor must either approve the leave, reschedule it to prevent forfeiture, or submit the matter for a public exigency determination).
However, this obligation is not absolute. Leave does not need to be restored when the employee chooses not to reschedule that leave. Matter of Joseph Hanyok, Comptroller General Decision B-187104 (September 28, 1978) (Hanyok). In those circumstances, the leave is forfeited because the employee, on his or her own volition, chose not to use it, or it was lost through the fault of the employee. Id. In addition, leave lost due to fault of employee may not be restored. See Matter of Edna M. Thomas, Comptroller General Decision B-197704 (1980) (Thomas); Hanyok. Thus, § 6304(d)(1) "places a reasonable burden on the employee to prove that leave was not lost because he [or she] chose not to use it." Hanyok.
The Arbitrator found that the grievant's supervisor attempted to reschedule the grievant's use-or-lose leave and advised the grievant that if she did not reschedule that leave, then it would be subject to forfeiture. The Arbitrator also found that the grievant refused to reschedule her leave, insisting on the original dates requested. The Arbitrator concluded, based on those facts, that the loss of the grievant's annual leave was due to the grievant's own actions and that, as such, restoration of that leave was not warranted. The Arbitrator's conclusion is not inconsistent with law. See Hanyok; Thomas. In this regard, Norsworthy and Raub are distinguishable because, in those cases, the agency made no attempt to reschedule the grievant's leave. By contrast, Agency fulfilled its requirement under law, and attempted to reschedule the grievant's leave. Therefore, the fact that the grievant's leave in this case was not rescheduled does not constitute "administrative error" within the meaning of § 6304(d)(1)(A) because the grievant refused to reschedule the leave. The forfeiture of leave resulted from the grievant's decision not to reschedule her leave and, thus, her choice not to use it.
The Union's exception is denied.
Footnote # 1 for 62 FLRA No. 21 - Authority's Decision
Footnote # 2 for 62 FLRA No. 21 - Authority's Decision
(d)(1) Annual leave which is lost by operation of this section because of--
(A) administrative error when the error causes a loss of annual leave otherwise accruable after June 30, 1960;
(B) exigencies of the public business when the annual leave was scheduled in advance; or
(C) sickness of the employee when the annual leave was scheduled in advance; shall be restored to the employee.
Footnote # 3 for 62 FLRA No. 21 - Authority's Decision