AFGE Local 1395 and Social Security Administration (Authority decision, September 7, 1982)

Final FLRA decision. The Authority resolves exceptions to an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a)(1) generally does not extend to orders involving arbitral awards unless an order involves an unfair labor practice under § 7116. This order does not decide an unfair labor practice.

Plain-English summary

A Social Security employee used annual leave after missing work during a local transit strike. An arbitrator found the agency had misapplied its rules for excused absences and ordered the leave restored. SSA argued that administrative leave was discretionary and restoration conflicted with the Back Pay Act. The Authority held that the agency had not shown a legal conflict and denied its exception.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Agency exception denied; annual-leave restoration upheld.
• Key point: Improper denial of excused absence could justify restoring charged annual leave.

Full text (FLRA public release)

[ v10 p18 ]

10:0018(5)AR

The decision of the Authority follows:

10 FLRA No. 5

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1395
Union

and

DEPARTMENT OF HEALTH AND
HUMAN SERVICES, SOCIAL
SECURITY ADMINISTRATION
Agency

Case No. O-AR-173

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR ALLEN D. SCHWARTZ 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. /1/

THE DISPUTE IN THIS MATTER CONCERNS MANAGEMENT'S REFUSAL TO GRANT THE
GRIEVANT AN EXCUSED ABSENCE WITHOUT CHARGE TO LEAVE (ADMINISTRATIVE
LEAVE) FOR HER FAILURE TO REPORT TO WORK ON A DAY OF A LOCAL TRANSIT
STRIKE. THE GRIEVANT ACCOUNTED FOR THE ABSENCE AS ANNUAL LEAVE AND
FILED A GRIEVANCE WHICH WAS ULTIMATELY SUBMITTED TO ARBITRATION.

THE ISSUE BEFORE THE ARBITRATOR WAS WHETHER THE AGENCY'S PERSONNEL
POLICIES GOVERNING THE GRANTING OF EXCUSED ABSENCES WERE PROPERLY
APPLIED TO THE GRIEVANT. THE ARBITRATOR DETERMINED THAT THE ACTIVITY
HAD IMPROPERLY APPLIED THE ESTABLISHED CRITERIA FOR GRANTING EXCUSED
ABSENCES AND THAT THE GRIEVANT SHOULD HAVE BEEN GRANTED A DAY OF EXCUSED
ABSENCE. AS HIS AWARD HE ORDERED THE DAY OF ANNUAL LEAVE CHANGED TO A
DAY OF EXCUSED ABSENCE WITHOUT CHARGE TO LEAVE.

IN ITS EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS CONTRARY TO
GOVERNING LAW AND REGULATION. SPECIFICALLY, THE AGENCY ARGUES THAT THE
APPLICATION OF THE PERSONNEL POLICIES REGARDING EXCUSED ABSENCES ARE
DISCRETIONARY WITH MANAGEMENT AND THAT CONSEQUENTLY SUCH POLICIES CANNOT
CONSTITUTE THE BASIS FOR A BACKPAY AWARD RECREDITING THE GRIEVANT'S
ANNUAL LEAVE ACCOUNT.

THE AGENCY'S EXCEPTION HOWEVER FAILS TO ESTABLISH THAT THE AWARD IS
CONTRARY TO GOVERNING LAW OR REGULATION. AS NOTED, THE ARBITRATOR
DETERMINED THAT AGENCY POLICIES PRESCRIBED THE CONDITIONS AND CRITERIA
PURSUANT TO WHICH EXCUSED ABSENCES WOULD BE GRANTED, AND HE FOUND IN
TERMS OF THIS CASE THAT MANAGEMENT'S IMPROPER APPLICATION OF THESE
POLICIES RESULTED IN THE REFUSAL OF AN EXCUSED ABSENCE TO THE GRIEVANT
THAT SHE OTHERWISE WOULD HAVE RECEIVED. THUS, THE ARBITRATOR'S AWARD
ORDERING THE RECREDITING OF THE GRIEVANT'S ANNUAL LEAVE ACCOUNT IS FULLY
CONSISTENT WITH THE GRIEVANT'S STATUTORY ENTITLEMENT UNDER THE BACK PAY
ACT TO BE MADE WHOLE FOR THE REDUCTION IN HER PAY AND ALLOWANCES, I.E.,
ANNUAL LEAVE, AS A DIRECT RESULT OF THE UNWARRANTED ACTION OF DENYING
HER AN EXCUSED ABSENCE, SEE 5 U.S.C. 5596(B)(1)(A)(I) (SUPP. IV 1980);
NATIONAL LABOR RELATIONS BOARD UNION, LOCAL 19 AND OFFICE OF THE GENERAL
COUNSEL, NATIONAL LABOR RELATIONS BOARD, 7 FLRA NO. 7(1981), AND THE
AWARD HAS NOT BEEN SHOWN TO BE OTHERWISE CONTRARY TO LAW OR REGULATION,
SEE NORTHEASTERN PROGRAM SERVICE CENTER, OFFICE OF PROGRAM SERVICE
CENTERS, SOCIAL SECURITY ADMINISTRATION AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1760, 7 FLRA NO. 120(1982) (IN WHICH THE
AUTHORITY DETERMINED THAT NOTHING IN GOVERNING LAW OR REGULATION
PRECLUDED AN ARBITRATOR FROM DETERMINING THAT THE DENIAL OF LEAVE
WITHOUT PAY WAS UNWARRANTED); 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 NO. 53(1981) (IN WHICH THE
AUTHORITY DETERMINED THAT A PROPOSAL WHICH UNDER THE STATED CONDITIONS
WOULD REQUIRE THE GRANTING OF ADMINISTRATIVE LEAVE WAS NOT PROHIBITED BY
GOVERNING REGULATION AND WAS WITHIN THE DUTY TO BARGAIN). ACCORDINGLY,
THE AGENCY'S EXCEPTION IS DENIED.

ISSUED, WASHINGTON, D.C., SEPTEMBER 7, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ THE OPPOSITION FILED BY THE UNION TO THE AGENCY'S EXCEPTION WAS
UNTIMELY AND THEREFORE HAS NOT BEEN CONSIDERED.