Naval Ordnance Station, Louisville, Kentucky (Activity) and Local Lodge No. 830, International Association of Machinists and Aerospace Workers (Union)

 3 FLRA No. 63
 
 NAVAL ORDNANCE STATION,
 LOUISVILLE, KENTUCKY
 Activity
 
 and
 
 LOCAL LODGE NO. 830,
 INTERNATIONAL ASSOCIATION
 OF MACHINISTS AND AEROSPACE
 WORKERS
 Union
 
                                            Case No. 0-AR-11
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION FOR REVIEW OF THE
 AWARD OF ARBITRATOR JOHN DUNSFORD FILED BY THE AGENCY UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
 U.S.C. 7122(A)).
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE
 WHEN, DUE TO EXTREME WHETHER CONDITIONS, THE ACTIVITY WAS CLOSED BY
 ORDER OF ITS COMMANDING OFFICER ON JANUARY 13, 17, 18, 20, 26 AND 27,
 1978.  ONLY GUARDS AND BUILDING MAINTENANCE CREWS REMAINED ON DUTY.
 EXCEPT FOR JANUARY 26 WHEN ADMINISTRATIVE LEAVE WAS GRANTED, EMPLOYEES
 WHO DID NOT WORK ON THESE DAYS WERE REQUIRED TO USE ANNUAL LEAVE OR TAKE
 LEAVE WITHOUT PAY.  THE UNION FILED A GRIEVANCE ALLEGING, RELEVANTLY,
 THAT THE ACTIVITY VIOLATED ARTICLE 8, SECTION 6(C) /1/ OF THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT (1) BECAUSE IT DID NOT GRANT
 ADMINISTRATIVE LEAVE TO THE EMPLOYEES WHO DID NOT WORK ON JANUARY 17,
 18, 20, AND 27 WHEREAS A MAJORITY OF FEDERAL ACTIVITIES IN THE
 LOUISVILLE AREA DID GRANT ADMINISTRATIVE LEAVE TO THEIR EMPLOYEES ON
 THESE DAYS, AND (2) BY NOT AUTHORIZING MASS EXCUSALS FOR PARTS OF OTHER
 DAYS, JANUARY 16 AND 19, ALTHOUGH SOME FEDERAL ACTIVITIES DID RELEASE
 THEIR EMPLOYEES EARLY.  THE MATTER ULTIMATELY WENT TO ARBITRATION.
 
    AT THE HEARING BEFORE THE ARBITRATOR, THE ACTIVITY CHALLENGED THE
 ARBITRABILITY OF THE DISPUTE ON THE GROUND THAT THE SUBJECT MATTER OF
 ARTICLE 8, SECTION 6(C) IS A RESERVED MANAGEMENT RIGHT UNDER SECTION
 12(B)(3) /2/ OF EXECUTIVE ORDER 11491 AND, THEREFORE, IS NONNEGOTIABLE.
 
    ACCORDING TO THE ARBITRATOR, THE ISSUES BEFORE HIM WERE AS FOLLOWS:
 
    1.  IS THE PRESENT GRIEVANCE ARBITRABLE IN VIEW OF THE FACT THAT
 UNDER SECTION 12(B)(3) OF
 
    EXECUTIVE ORDER 11491 STATION MANAGEMENT RETAINS THE RIGHT "TO
 RELIEVE EMPLOYEES FROM DUTIES
 
    BECAUSE OF LACK OF WORK OR FOR OTHER LEGITIMATE REASONS"?
 
    2.  IF THE GRIEVANCE IS ARBITRABLE, DID THE STATION VIOLATE ARTICLE
 8, SECTION 6(C) OF THE
 
    NEGOTIATED AGREEMENT BETWEEN THE PARTIES ON JANUARY 16-20, 1978 AND
 JANUARY 26-27, 1978?
 
    WITH RESPECT TO THE ARBITRABILITY QUESTION, THE ARBITRATOR FIRST
 DETERMINED THAT DECISIONS AS TO WHETHER OR NOT TO AUTHORIZE MASS
 EXCUSALS FROM WORK AND CLOSE THE STATION IS A RETAINED MANAGEMENT RIGHT
 UNDER SECTION 12(B)(3) OF THE ORDER, AND THEREFORE THAT PART OF THE
 GRIEVANCE CONCERNING THE ACTIVITY'S FAILURE TO GRANT MASS EXCUSALS FOR
 PARTS OF JANUARY 16 AND 19 WAS NOT ARBITRABLE.  THE ARBITRATOR FURTHER
 DETERMINED, HOWEVER, THAT THE TYPE OF LEAVE POLICY TO APPLY ONCE
 MANAGEMENT HAS INDEPENDENTLY MADE A DECISION AS TO WHETHER OR NOT TO
 CLOSE A FACILITY IS NOT AN INFRINGEMENT ON MANAGEMENT'S RESERVED RIGHTS
 UNDER SECTION 12(B)(3), BUT MERELY CONCERNS THE IMPLEMENTING PROCEDURES
 OF IMPACT OF THAT DECISION ON ADVERSELY AFFECTED EMPLOYEES.  THE
 ARBITRATOR CONCLUDED, THEREFORE, THAT THE PART OF THE GRIEVANCE
 CONCERNING THE TYPE OF LEAVE THE ACTIVITY SHOULD HAVE GRANTED ITS
 EMPLOYEES ONCE IT DECIDED TO CLOSE WAS ARBITRABLE.
 
    WITH RESPECT TO THE MERITS OF THE GRIEVANCE, THE ARBITRATOR FOUND
 THAT SINCE THE MAJORITY OF THE FEDERAL ACTIVITIES IN THE LOUISVILLE AREA
 HAD GRANTED ADMINISTRATIVE LEAVE TO THEIR EMPLOYEES ON JANUARY 17, 18,
 20, AND 27, THE ACTIVITY HAD VIOLATED ARTICLE 8, SECTION 6(C) OF THE
 AGREEMENT BY NOT GRANTING ADMINISTRATIVE LEAVE TO ITS EMPLOYEES ON THOSE
 DATES AFTER IT DECIDED TO CLOSE.  ACCORDINGLY, THE ARBITRATOR AWARDED AS
 FOLLOWS:
 
    TO THE EXTENT THAT THE GRIEVANCE CLAIMS THAT THE STATION WAS
 CONTRACTUALLY BOUND TO EXCUSE
 
    EMPLOYEES FROM WORK BECAUSE OF EMERGENCY WEATHER CONDITIONS ON
 JANUARY 16 AND 19, 1978, IT IS
 
    DISMISSED AS NONARBITRABLE.  DECISIONS IF AND WHEN MASS EXCUSALS ARE
 TO BE AUTHORIZED ARE
 
    RETAINED RIGHTS OF MANAGEMENT UNDER SECTION 12(B)(3) OF EXECUTIVE
 ORDER 11491 AND ARE
 
    NONNEGOTIABLE SUBJECT MATTER.
 
    IN OTHER RESPECTS THE GRIEVANCE IS ARBITRABLE.
 
    THE STATION VIOLATED ARTICLE 8, SECTION 6(C) OF THE BASIC AGREEMENT
 WHEN, HAVING MADE THE
 
    DECISION TO EXCUSE MOST EMPLOYEES FROM WORK DUE TO EMERGENCY WEATHER
 CONDITIONS ON JANUARY 17,
 
    18, 20, AND 27, 1978, IT REQUIRED THEM TO TAKE ANNUAL LEAVE OR OR
 LEAVE WITHOUT PAY ON THOSE
 
    DAYS RATHER THAN GRANTING ADMINISTRATIVE LEAVE.  BUT FOR THE
 VIOLATION OF THE BASIC AGREEMENT
 
    BY THE STATION, THESE EMPLOYEES WOULD HAVE RECEIVED ADMINISTRATIVE
 LEAVE ON JANUARY 17, 18, 20
 
    AND 27, 1978.
 
    THE STATION SHALL TAKE WHATEVER MEASURES ARE NECESSARY TO CORRECT
 THESE VIOLATIONS BY
 
    CREDITING THE AFFECTED EMPLOYEES WITH THE ADMINISTRATIVE LEAVE TO
 WHICH THEY WERE ENTITLED
 
    UNDER THE CONTRACT.  BY AGREEMENT OF THE PARTIES, THE ARBITRATOR
 SHALL RETAIN JURISDICTION IN
 
    THIS CASE ONLY FOR PURPOSES OF RESOLVING ANY DISPUTES REGARDING THE
 PRECISE FORM THE REMEDY
 
    SHOULD TAKE.
 
    THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
 PURSUANT TO THE RULES OF PROCEDURE SET FORTH IN 5 C.F.R.PART 2411(1978),
 WHICH, TO THE EXTENT CONSISTENT WITH THE PROVISIONS OF SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)) AND AS AMENDED BY SECTION 2400.5 OF THE TRANSITION RULES AND
 REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY, 44 F.R. 44741,
 REMAIN OPERATIVE WITH RESPECT TO THE PRESENT CASE.  THE AGENCY SEEKS
 AUTHORITY ACCEPTANCE OF ITS PETITION ON THE BASIS OF THE EXCEPTION
 DISCUSSED BELOW.  THE UNION FILED AN OPPOSITION.
 
    UNDER SECTION 2411.32 OF THE AMENDED RULES AND SECTION 7122(A) OF THE
 STATUTE, THE AUTHORITY WILL GRANT A PETITION FOR REVIEW WHERE IT
 APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE
 PETITION, THAT THE AWARD IS DEFICIENT BECAUSE IT IS CONTRARY TO LAW,
 REGULATION, OR THE ORDER, OR ON OTHER GROUNDS SIMILAR TO THOSE APPLIED
 BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS CASES.
 
    IN ITS EXCEPTION TO THE ARBITRATOR'S AWARD, THE AGENCY CONTENDS THAT
 THE AWARD VIOLATES SECTION 12(B)(3) OF THE ORDER.  /3/ IN THIS REGARD,
 THE AGENCY CONTENDS THAT A DECISION AS TO WHETHER TO REQUIRE EMPLOYEES
 TO USE ANNUAL LEAVE OR ADMINISTRATIVE LEAVE IS A RETAINED MANAGEMENT
 RIGHT UNDER SECTION 12(B)(3) AND IS THEREFORE NONNEGOTIABLE SINCE:  (1)
 THE RIGHT TO REQUIRE AN EMPLOYEE TO USE ANNUAL LEAVE OR ADMINISTRATIVE
 LEAVE IS INDISTINGUISHABLE FROM THE RIGHT TO RELIEVE EMPLOYEES FROM
 DUTY;  (2) PRIOR ASSISTANT SECRETARY DECISIONS HAVE INDICATED THAT
 MANAGEMENT HAS A NONNEGOTIABLE RIGHT UNDER SECTION 12(B)(3) TO DETERMINE
 THE LEAVE STATUS OF EMPLOYEES WHO ARE RELIEVED FROM DUTIES, AS WELL AS
 THE NONNEGOTIABLE RIGHT NOT TO RELIEVE EMPLOYEES FROM DUTIES;  AND (3)
 THE RIGHT TO RELIEVE EMPLOYEES FROM DUTIES REFLECTS THE AUTHORITY
 ALREADY VESTED IN MANAGEMENT BY LAW /4/ AND REGULATION /5/ TO REQUIRE
 ANNUAL LEAVE OF AN EMPLOYEE.  THE AGENCY THUS CONCLUDES THAT THE AWARD
 VIOLATES THE ORDER BECAUSE IT ENFORCES A NONNEGOTIABLE COLLECTIVE
 BARGAINING AGREEMENT PROVISION WHICH REQUIRES THE ACTIVITY TO "ABDICATE
 ITS RETAINED RIGHT TO RELIEVE EMPLOYEES FROM DUTY WHEN AND AS IT
 WISHES."
 
    THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION
 AWARD WHERE IT APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED
 IN THE PETITION, THAT THE AWARD VIOLATES THE ORDER.  /6/ HOWEVER, IN
 THIS CASE THE AGENCY'S PETITION DOES NOT CONTAIN A DESCRIPTION OF FACTS
 AND CIRCUMSTANCES TO SUPPORT ITS EXCEPTION.  THUS, THE AGENCY FAILS TO
 DEMONSTRATE IN WHAT WAY THE ARBITRATOR'S AWARD, IN WHICH HE DETERMINED
 THAT THE ACTIVITY HAD VIOLATED THE PARTIES AGREEMENT BY NOT GRANTING
 ADMINISTRATIVE LEAVE TO ITS EMPLOYEES AFTER MAKING A DECISION TO CLOSE
 THE ACTIVITY ON CERTAIN DAYS, VIOLATES MANAGEMENT'S SECTION 12(B)(3)
 RIGHT TO RELIEVE EMPLOYEES FROM DUTIES BECAUSE OF LACK OF WORK OR FOR
 OTHER LEGITIMATE REASONS.  THE ASSISTANT SECRETARY'S DECISIONS UPON
 WHICH THE AGENCY RELIES ARE INAPPOSITE.  A CAREFUL READING OF THOSE
 DECISIONS INDICATE THAT THEY ARE DIRECTED ONLY TO THE RIGHT OF
 MANAGEMENT UNDER SECTION 12(B)(3) TO MAKE THE ULTIMATE DECISION ON
 WHETHER OR NOT TO EXCUSE EMPLOYEES FROM DUTY AT ALL, A RIGHT CLEARLY
 RECOGNIZED BY THE ARBITRATOR, AND NOT TO THE TYPE OF LEAVE TO BE GRANTED
 AFTER MANAGEMENT HAS MADE THE DECISION TO EXCUSE THE EMPLOYEES.
 
    FURTHER, NOTHING IN THOSE DECISIONS, OR IN THE LANGUAGE OF SECTION
 12(B)(3) SUPPORTS THE AGENCY'S ASSERTION THAT THE RIGHT TO REQUIRE AN
 EMPLOYEE TO USE ANNUAL LEAVE OR ADMINISTRATIVE LEAVE IS
 INDISTINGUISHABLE FROM THE RIGHT TO RELIEVE EMPLOYEES FROM DUTY.  IT MAY
 BE THAT AN AGENCY DECISION TO RELIEVE EMPLOYEES FROM DUTY MAY AT THE
 SAME TIME, IN MOST CIRCUMSTANCES, NECESSITATE A DECISION AS TO THE TYPE
 OF LEAVE THAT EMPLOYEES WILL BE REQUIRED TO USE.  HOWEVER, NOTHING IN
 SECTION 12(B)(3) PREVENTS AN AGENCY FROM AGREEING TO A NEGOTIATED
 AGREEMENT PROVISION SUCH AS THE ONE THE AGENCY AGREED TO IN THIS CASE,
 THAT IS, THAT AFTER MANAGEMENT HAS MADE THE DETERMINATION ON WHETHER OR
 NOT TO EXCUSE EMPLOYEES FROM DUTY UNDER CERTAIN CIRCUMSTANCES THEN
 "EXCUSALS SHALL BE ON THE SAME BASIS AS OTHER FEDERAL ACTIVITIES OF THE
 LOUISVILLE AREA WHEN THE SAME CONDITIONS EXIST." SUCH A PROVISION COULD
 THEN BE ENFORCED THROUGH THE ARBITRAL PROCESS.
 
    FURTHERMORE, AS TO THE AGENCY'S ASSERTION THAT MANAGEMENT'S RETAINED
 RIGHT UNDER SECTION 12(B)(3) TO RELIEVE EMPLOYEES FROM DUTIES REFLECTS
 THE AUTHORITY ALREADY VESTED IN MANAGEMENT BY LAW AND REGULATIONS TO
 REQUIRE ANNUAL LEAVE OF AN EMPLOYEE, SUCH ASSERTIONS DO NOT SUPPORT AN
 EXCEPTION THAT AN AWARD VIOLATES SECTION 12(B)(3), NOR DOES THE AGENCY
 IN ANY MANNER SHOW THAT SUCH LAWS AND REGULATIONS WOULD PREVENT THE
 NEGOTIATION OF THE PROVISION INVOLVED HEREIN, OR ARBITRAL ENFORCEMENT OF
 THAT PROVISION.  THEREFORE, THE AGENCY'S EXCEPTION PROVIDES NO BASIS FOR
 ACCEPTANCE OF ITS PETITION UNDER SECTION 2411.32 OF THE AMENDED RULES.
 
    ACCORDINGLY, THE AGENCY'S PETITION FOR REVIEW OF THE ARBITRATOR'S
 AWARD IS DENIED BECAUSE IT FAILS TO MEET THE REQUIREMENTS FOR REVIEW SET
 FORTH IN SECTION 2411.32 OF THE AMENDED RULES OF PROCEDURE.
 
    ISSUED, WASHINGTON, D.C., JUNE 11, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ ACCORDING TO THE ARBITRATOR, ARTICLE 8, SECTION 6(C) PROVIDES:
 
    SECTION 6.  EMERGENCY CONDITIONS
 
   .          .          .          .
 
 
    C.  WHEN MASS EXCUSALS ARE AUTHORIZED, EMPLOYEES MUST BE EITHER
 ACTUALLY AT THEIR PLACE OF
 
    DUTY, OR SCHEDULED TO REPORT FOR DUTY, IN IN ORDER TO BE EXCUSED.
 MASS EXCUSALS SHALL BE ON
 
    THE SAME BASIS AS OTHER FEDERAL ACTIVITIES OF THE LOUISVILLE AREA
 WHEN THE SAME CONDITIONS
 
    EXIST.
 
    /2/ SECTION 12(B)(3) PROVIDES:
 
    SEC. 12.  BASIC PROVISIONS OF AGREEMENTS.  EACH AGREEMENT BETWEEN AN
 AGENCY AND A LABOR
 
    ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS-- (B)
 MANAGEMENT OFFICIALS OF THE AGENCY
 
    RETAIN THE RIGHT, IN ACCORDANCE WITH APPLICABLE LAWS AND
 REGULATIONS--
 
   *          *          *          *
 
 
    (3) TO RELIEVE EMPLOYEES FROM DUTIES BECAUSE OF LACK OF WORK OR FOR
 OTHER LEGITIMATE
 
    REASONS(.)
 
    /3/ THE AGENCY ALSO MAKES A GENERAL ASSERTION THAT THE AWARD VIOLATES
 SECTION 7106(A)(2)(A) OF THE STATUTE (5 U.S.C. 7106(A)(2)(A)), BUT
 DIRECTS ITS CONTENTIONS IN SUPPORT OF ITS EXCEPTION ONLY TO THE ALLEGED
 VIOLATION OF THE ORDER.
 
    /4/ THE AGENCY CITES, IN THIS REGARD, 5 U.S.C. 6302(D)(1976), WHICH
 PROVIDES:
 
    (D) THE ANNUAL LEAVE PROVIDED BY THIS SUBCHAPTER, INCLUDING ANNUAL
 LEAVE THAT WILL ACCRUE
 
    TO AN EMPLOYEE DURING THE YEAR, MAY BE GRANTED AT ANY TIME DURING THE
 YEAR AS THE HEAD OF THE
 
    AGENCY CONCERNED MAY PRESCRIBE.
 
    /5/ THE AGENCY CITES, IN THIS REGARD, FEDERAL PERSONNEL MANUAL
 CHAPTER 630, SUBCHAPTER 3-4(B), WHICH PROVIDES:
 
    ANNUAL LEAVE PROVIDED BY LAW IS A BENEFIT AND ACCRUES AUTOMATICALLY.
 HOWEVER, SUPERVISORS
 
    HAVE THE RESPONSIBILITY TO DECIDE WHEN THE LEAVE MAY BE TAKEN.  THIS
 DECISION WILL GENERALLY
 
    BE MADE IN THE LIGHT OF THE NEEDS OF THE SERVICE RATHER THAN SOLELY
 ON THE DESIRES OF THE
 
    EMPLOYEES.  SUPERVISORS SHOULD INSURE THAT ANNUAL LEAVE IS SCHEDULED
 FOR USE SO AS TO PREVENT
 
    ANY UNINTENDED LOSS AT THE END OF THE LEAVE YEAR.
 
    /6/ THUS, WHERE, AS IN THE CIRCUMSTANCES OF CASE, THE GRIEVANCE WAS
 DECIDED BY THE ARBITRATOR BASED ON HIS INTERPRETATION OF THE ORDER, THE
 DISPOSITION OF THE CASE IS GOVERNED BY THE PROVISIONS OF THE ORDER.