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48 FLRA No. 143

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE NAVY

MARE ISLAND NAVAL SHIPYARD

VALLEJO, CALIFORNIA

(Agency)

and

INTERNATIONAL FEDERATION OF PROFESSIONAL

AND TECHNICAL ENGINEERS, PLANNERS,

ESTIMATORS, PROGRESSMEN & SCHEDULERS ASSOCIATION

LOCAL 5

(Union)

0-AR-2477

_____

DECISION

January 12, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Walter L. Kintz filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance alleging that the Agency violated the parties' agreement when it forced employees to use annual leave during a temporary shutdown of its operations. For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The Agency effectuated a shutdown of its nonessential operations from June 29 through July 4, 1992. Most employees were required to use 4 days' annual leave during this period. The Union filed a grievance alleging that the Agency's actions violated the parties' collective bargaining agreement. When the grievance was not resolved it was submitted to arbitration on the following stipulated issue:

Did the Mare Island Naval Shipyard violate the collective bargaining agreement when it effected the summer shutdown of June 29th, 1992, and, if so what should the remedy be?

Award at 8.

The Arbitrator determined, as relevant here, that there was no dispute that the Agency had the right to shut down the facility. The Arbitrator found that the "dispute [was] confined to the propriety of requiring employees to use their annual leave during [the] shutdown period." Id. at 9.

The Arbitrator noted that, under Article 7, Section 8, of the parties' agreement,⁽¹⁾ the Agency "may compel the use of annual leave when operations are interrupted or suspended but that privilege is expressly limited to conditions which cannot reasonably be foreseen." Id. The Arbitrator also noted that the agreement "expressly excludes 'circumstances such as' the reduction of leave balances from the category 'unforeseen.'" Id. In this regard, the Arbitrator determined that the Agency effectuated the disputed shutdown "to reduce the leave balances of employees so as to make the base appear more competitive to the Base Closure Commission." Id. The Arbitrator concluded that, as the shutdown was not an unforeseen circumstance, the Agency violated the agreement by forcing employees to take annual leave.

The Arbitrator rejected the Agency's arguments that it was authorized by various regulations and bargaining history to require affected employees to take annual leave. The Arbitrator concluded, in this regard, that the agreement was not inconsistent with any of the relevant regulations and that, as the wording of the agreement was clear, it was unnecessary to consider bargaining history. As his award, the Arbitrator sustained the grievance and directed the Agency to make whole the employees who were forced to use annual leave during the shutdown by restoring their annual leave.

III. Positions of the Parties

A. Exceptions

The Agency contends that the award fails to draw its essence from the parties' agreement. The Agency claims that, under Article 7, Section 8, of the agreement, employees may be required to take annual leave when they are notified of suspended or interrupted operations, either 24 hours in advance or prior to the end of the preceding shift. According to the Agency, the portion of Section 8 referring to unforeseen circumstances "merely emphasizes that situations where employees are to be excused from work, rather than required to use annual leave, must be unforeseen situations where advance notice cannot be given." Exceptions at 8.

The Agency also contends that the award conflicts with the Back Pay Act, 5 U.S.C. § 5596, and 5 C.F.R. § 610.302 which provides the authority to place hourly paid employees, such as the employees in this case, on administrative leave.⁽²⁾

The Agency contends that the award is contrary to the Back Pay Act because the Arbitrator failed to find "that 'but for' the 'improper' forced leave, the employees would have suffered no loss." Exceptions at 13. As to its claim that the award conflicts with 5 C.F.R. § 610.302, the Agency contends that the only way it could make whole those employees who were forced to use annual leave during the shutdown by restoring their annual leave would be to place those employees on administrative leave for the 4-day shutdown. However, the Agency argues that it does not have authority under 5 C.F.R. § 610.302 to place employees on administrative leave for the period of the shutdown.

B. Opposition

The Union argues that the Agency has not demonstrated that the award fails to draw its essence from the parties' agreement. The Union also disputes the Agency's contentions that the award is inconsistent with 5 C.F.R. § 610.302 and the Back Pay Act. The Union argues that the award does not require the Agency to place employees on administrative leave retroactively. According to the Union, the award simply requires the Agency to restore to affected employees the annual leave wrongfully charged them.

IV. Analysis and Conclusions

A. The Award Draws Its Essence from the Agreement

To establish that an award is deficient because it does not draw its essence from a collective bargaining agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Department of the Air Force, McClellan Air Force Base, California and International Federation of Professional and Technical Engineers, Local 220, 40 FLRA 968, 971 (1991) (McClellan AFB). However, these tests and the private sector cases from which they are derived make it clear that an award will not be found deficient merely because a party believes that the arbitrator misinterpreted the agreement. McClellan AFB, 40 FLRA at 971 (citing United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990)). In this regard, the interpretation of a collective bargaining agreement is left solely to the arbitrator because it is the arbitrator's construction of the agreement for which the parties have bargained. McClellan AFB, 40 FLRA at 971-72.

The Arbitrator concluded that the Agency violated Article 7, Section 8, of the parties' agreement by forcing employees to take annual leave during the shutdown effectuated for the purpose of reducing leave balances. The Agency has not demonstrated that the Arbitrator's interpretation or application of Article 7, Section 8, disregards the agreement or is irrational, unfounded, or implausible. Instead, we conclude that the Agency's exception constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement and is an attempt to relitigate the matter before the Authority. As such, the exception provides no basis for finding the award deficient, and we will deny it. See, for example, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, AFL-CIO, Local 1592, 39 FLRA 1282, 1286 (1991).

B. The Award Is Not Contrary to Law, Rule, or Regulation

We reject the Agency's argument that the award does not satisfy the requirements of the Back Pay Act because the Arbitrator did not find "that, 'but for' the 'improper' imposition of forced annual leave, the grievants would not have suffered a loss or reduction of pay or allowances." Exceptions at 14. In this regard, "a specific recitation of certain words and phrases, such as 'but for[,]'" is not required. International Association of Machinists and Aerospace Workers, Lodge 2261 and American Federation of Government Employees, Local 2185 and U.S. Department of the Army, Tooele Army Depot, Tooele, Utah, 47 FLRA 427, 434 (1993). Rather, a finding of a direct connection between an unwarranted or unjustified personnel action and an employee's loss of pay, allowances, or differentials must be found. Id. Here, the Arbitrator concluded that the Agency violated the parties' agreement by its actions in improperly requiring employees to use annual leave during the shutdown period. Thus, the Arbitrator found a direct connection between the contract violation and the employees' loss of leave. We conclude that the Arbitrator made the required findings under the Back Pay Act for an award ordering the restoration of leave and that the award is not contrary to the Back Pay Act. See IRS, Wichita, 40 FLRA at 628-29.

We also reject the Agency's contention that the award conflicts with 5 C.F.R. § 610.302 because it requires the Agency to grant employees administrative leave for the 4-day period of the shutdown.⁽³⁾ In this connection, regulations permitting the employees involved in this case to be released from work without charge to leave or loss of pay are set out at 5 C.F.R. §§ 610.301-610.306. As relevant here, 5 C.F.R. § 610.302 states that agencies may grant administrative leave "to the extent warranted by good administration for short periods of time not generally exceeding 3 consecutive workdays . . . ." In our view, the use of the word "generally" provides discretion to the agency to determine the actual duration of the administrative leave to be granted if "warranted by good administration," so long as the period of time for which such administrative leave is granted is "short." The Agency has not demonstrated that the time period involved in this case, 4 workdays, is not reasonably within the ambit of the language of the regulation. See Long Beach Naval Shipyard, Long Beach, California and International Federation of Professional and Technical Engineers, Local 174, AFL-CIO and American Federation of Government Employees, Local 2237, AFL-CIO and Federal Employees Metal Trades Council, Long Beach, California, 7 FLRA 362, 367-68 (1981) (Long Beach Naval Shipyard) (similarly interpreting identical language then set out in FPM Supplement 990-2, Book 610, subchapter S3-2).

In addition, the Agency has not demonstrated that the portions of 5 C.F.R. § 610.302 providing that administrative leave "may not be used" for situations that "ordinarily would be covered by the scheduling of leave, furlough or the assignment of other work[,]" precludes the Agency from placing employees on administrative leave for the period of the 4-day shutdown. In this regard, we note that 5 C.F.R. § 610.305 provides that administrative leave may be granted in a number of such circumstances, including situations where agencies or portions thereof are closed for short periods.⁽⁴⁾ As the Agency retains discretion under 5 C.F.R. §§ 610.301-610.306 to determine whether and how much administrative leave may be granted during a period of a shut down, the Agency has not established that the award is contrary to these regulations.

In sum, as the Agency has not established that the award is deficient, we will dismiss the Agency's exceptions.

V. Decision

The Agency's exceptions are denied.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Article 7, Section 8, provides, in pertinent part:

The Employer reserves the right to place an employee on annual leave with or without his consent, in accordance with FPM and CPI 630. In cases of interrupted or suspended operations, employees who cannot work will be required to use annual leave in all cases where twenty-four (24) hours' advance notice can be given. When such situations develop too late to give twenty-four (24) hours' notice, employees who cannot be assigned to other work will be required to use annual leave only if notice can be given before the end of their shift . . . . In such situations when neither twenty-four (24) hours' notice nor notice before the end of their . . . shift is possible, employees who cannot be assigned to other work shall be excused in accordance with CPI 610.S3-2c(6)(a) . . . The foregoing applies only to conditions which cannot reasonably be foreseen, e.g., power or equipment failure or weather conditions affecting only certain kinds of work but not the activity as a whole. Circumstances such as reduction of leave accumulations for budgetary reasons are not considered "unforeseen."

Award at 2-3.

2. 5 C.F.R. § 610.302, which addresses administrative dismissals, provides:

The authority in this subpart may be used only to the extent warranted by good administration for short periods of time not generally exceeding 3 consecutive work days in a single period of excused absence. This authority may not be used in situations of extensive duration or for periods of interrupted or suspended operations such as ordinarily would be covered by the scheduling of leave, furlough, or the assignment of other work. . . .

3. The phrase administrative leave means "'an absence from duty administratively authorized without loss of pay and without charge to leave.'" American Federation of Government Employees, Local 2902 and U.S. Department of the Army, Army Garrison, Fort A.P. Hill, Virginia, 44 FLRA 3, 9 (1992) (quoting Federal Personnel Manual (FPM) Chapter 630, subchapter 11-7).

4. 5 C.F.R. § 610.305 provides, in pertinent part, that administrative leave may be granted when:

        (a) Normal operations . . . are interrupted by events beyond the control of management or employees;

        (b) For managerial reasons, the closing of an establishment or portions thereof is required for short periods; or

. . . .

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