[ v01 p588 ]
01:0588(68)CA
The decision of the Authority follows:
1 FLRA No. 68
DEPARTMENT OF DEFENSE,
UNITED STATES ARMY
FORT SAM HOUSTON, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL UNION 2154, AFL-CIO
Complainant
Assistant Secretary
Case No. 63-7885(CA)
DECISION AND ORDER
ON MARCH 16, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM B. DEVANEY ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT
BE DISMISSED IN ITS ENTIRETY. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
REGULATIONS (44 F.R. 7). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATION. /1A/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 63-7885(CA) BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JUNE 15, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
MR. ERNEST CANTU
BUSINESS AGENT
LOCAL 2154
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
HEADQUARTERS FORT SAM HOUSTON
P.O. BOX 8241
WAINWRIGHT STATION, TEXAS 78208
MR. DOYLE HUNTSMAN, ADVISER
6061 NORTHWEST EXPRESSWAY
SAN ANTONIO, TEXAS 78201
MRS. ADDIE VALADEZ, ADVISER
637 EAST PARK AVENUE
SAN ANTONIO, TEXAS 78212
FOR THE COMPLAINANT
MAJOR JULIA A. BELT
CHIEF, ADMINISTRATIVE LAW BRANCH
OFFICE OF THE STAFF JUDGE ADVOCATE
HEADQUARTERS, FORT SAM HOUSTON
FORT SAM HOUSTON, TEXAS 78234
FOR THE RESPONDENT
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
3. ARTICLE XVI, LEAVE, OF THE PARTIES' CURRENT AGREEMENT (COMP.
EXH. 1) PROVIDES, IN PART AS FOLLOWS:
"16-1. LEAVE WILL BE ADMINISTERED IN ACCORDANCE WITH FORT SAM
HOUSTON REGULATION 690-14.
. . . .
"16-3 . . . NORMALLY, THE EMPLOYEE WILL SUBMIT HIS SCHEDULED LEAVE
REQUEST (TO HIS
IMMEDIATE SUPERVISOR) DURING THE FIRST SIXTY DAYS OF THE CALENDAR
YEAR. ONCE AN EMPLOYEE'S
CHOICE IS DISTURBED OR IF ANOTHER EMPLOYEE WILL NORMALLY BE PERMITTED
TO CHANGE HIS SELECTION ONLY IF WORKLOAD PERMITS AND NO OTHER EMPLOYEE'S
CHOICE IS DISTURBED OR IF ANOTHER EMPLOYEE
AGREES TO TRADE. "(COMP. EXH. 1).
4. FORT SAM HOUSTON REGULATION 690-14 PROVIDES, IN PART, AS FOLLOWS:
"3. POLICY.
"A. GENERAL. NORMALLY, ALL TYPES OF LEAVE MUST BE REQUESTED BY THE
EMPLOYEE, IN WRITING
WHERE APPROPRIATE, AND APPROVED BY THE SUPERVISOR . . . " /1/
"5. GRANTING ANNUAL LEAVE . . .
"A. SCHEDULING. SUPERVISORS WILL PREPARE LEAVE SCHEDULES IN WRITING
NOT LATER THAN 1
APRIL OF EACH YEAR FOR EMPLOYEES UNDER THEIR SUPERVISION.
. . . SCHEDULES MAY BE CHANGED FOR EMPLOYEE'S CONVENIENCE . . . "
"6. ADVANCED ANNUAL LEAVE.
"A. SUPERVISORS MAY APPROVE REQUESTS FOR ADVANCED ANNUAL LEAVE WHEN
JUSTIFIED IN WRITING
BY EMPLOYEE . . . "
"8. RESTORATION OF FORFEITED ANNUAL LEAVE.
"(2) THE SECOND FACTOR DEALS WITH THE STATUTORY REQUIREMENT THAT THE
ANNUAL LEAVE MUST HAVE
BEEN 'SCHEDULED IN ADVANCE.' THE DECISION TO SCHEDULE THE LEAVE MUST
HAVE BEEN MADE IN
WRITING BEFORE THE START OF THE THIRD BI-WEEKLY PAY PERIOD PRIOR TO
THE END OF THE LEAVE
YEAR." (COMP. EXH. 2)
5. ON OCTOBER 25, 1974, CIVILIAN PERSONNEL BULLETIN NO. 37 WAS
ISSUED TO EXPLAIN PROVISIONS FOR RESTORATION OF FORFEITED ANNUAL LEAVE.
THE BULLETIN EMPHASIZED THE UNLESS "REQUESTS, SUPPORTED BY THE NECESSARY
DWCUMENTATION, RESTORATION CANNOT BE APPROVED." (RES. EXH. 2); "(2)
THE SECOND FACTOR DEALS WITH THE STATUTORY REQUIREMENT THAT THE ANNUAL
LEAVE MUST HAVE BEEN 'SCHEDULED IN ADVANCE.'"; APPENDIX B TO BULLETIN
NO. 37 SET FORTH "PROCEDURES FOR REQUESTING RESTORATION OF FORFEITED
ANNUAL LEAVE" AND FORMATS 1, 2 AND 3 WERE ATTACHED AS INCLOSURES 1, 2
AND 3 TO APPENDIX B. FORMAT I (BASED ON ADMINISTRATIVE ERROR) PROVIDED
"DOCUMENTS SUPPORTING THE ABOVE SITUATION ARE ATTACHED;" FORMAT II
(BASED ON ILLNESS) PROVIDED "SF 71 (OR OTHER DOCUMENTS) ARE ATTACHED TO
SUPPORT THE SCHEDULING AND RESCHEDULING OF LEAVE DESCRIBED ABOVE;" AND
?FORMAT III (BASED ON EXIGENCY OF PUBLIC BUSINESS) PROVIDED "SF 71 (OR
OTHER DOCUMENTS) ARE ATTACHED AS INCLOSURES 2 AND 3 TO SUPPORT THE
SCHEDULING AND RESCHEDULING DESCRIBED ABOVE." (RES. EXH. 2)
6. THE SAME PROCEDURES FOR REQUESTING RESTORATION OF FORFEITED
ANNUAL AND THE SAME FORMATS I, II AND III AS FIRST ISSUED AS PART OF
BULLETIN NO. 37, IN 1974, ARE INCORPORATED AS APPENDIX B TO FSH REG.
690-14 (COMP. EXH. 2).
7. MS. BETTY R. MIZE, CHIEF, PROPERTY CONTROL BRANCH AND ASSISTANT
SUPPLY DIVISION CHIEF, TESTIFIED THAT IN THE SUPPLY DIVISION SOME
SUPERVISORS PASS AROUND TO THEIR EMPLOYEES A LONG SHEET WHICH HAS MONTHS
ACROSS THE TOP AND EACH EMPLOYEE WILL ENTER THE TIME THAT THEY WANT TO
TAKE ANNUAL LEAVE. MR. FELIPE REYNA, WHO HAS BEEN EMPLOYED IN THE
SUPPLY DIVISION SINCE 1971, TESTIFIED THAT "WE SCHEDULE THE LEAVE
THROUGH THE WHOLE YEAR" AND WHEN ASKED IF THIS WAS DONE IN WRITING,
RESPONDED "SURE DO. EVERYBODY DOES." WHEN ASKED AGAIN IF TO HIS
KNOWLEDGE WAS HE REQUIRED TO SCHEDULE HIS LEAVE IN WRITING, MR. REYNA
AGAIN RESPONDED "YES, WE ARE."
8. LEAVE SCHEDULES ARE PREPARED IN A SIMILAR MANNER BY SUPERVISORS
FOR EMPLOYEES IN THE BARGAINING UNIT OUTSIDE THE SUPPLY DIVISION, WITH
EACH EMPLOYEE SUBMITTING A REQUEST, EITHER IN WRITING OR ORALLY, TO HIS
OR HER SUPERVISOR AND FROM THIS INFORMATION A LEAVE SCHEDULE WAS
PREPARED BY EACH SUPERVISOR.
9. PRIOR TO APRIL, 1977, THE PRACTICE IN THE SUPPLY DIVISION WAS
THAT RESCHEDULING OF LEAVE WAS DONE VERBALLY. THAT IS, EACH EMPLOYEE
WOULD TELL HIS, OR HER, SUPERVISOR IF A CHANGE OF HIS, OR HER, LEAVE
SCHEDULE WERE DESIRED AND THE SUPERVISOR WOULD MAKE THE APPROPRIATE
CHANGE ON THE LEAVE SCHEDULE.
10. PRIOR TO APRIL, 1977, THE PRACTICE OUTSIDE THE SUPPLY DIVISION
WAS THAT CHANGES, OR REQUESTS TO RESCHEDULE, LEAVE WERE MADE IN WRITING.
MR. HAROLD B. BUCKLEY, RESPONDENT'S CIVILIAN PERSONNEL OFFICER,
TESTIFIED THAT CHANGES OF LEAVE SCHEDULES IS " . . . REQUESTED, AND
RESCHEDULED IN WRITING." WHEN ASKED WHETHER, TO HIS PERSONAL KNOWLEDGE,
LEAVE WAS EVER RESCHEDULED IN WRITING PRIOR TO APRIL OF 1977, MR.
BUCKLEY REPLIED:
"A. YES, IT WAS THE PRACTICE WAS SUBSTANTIALLY, I'D CALL IT." (TR.
102).
MR. BUCKLEY STATED THAT THE CIVILIAN PERSONNEL OFFICE HAD NEVER
ESTABLISHED ANY PARTICULAR FORMAT FOR A LEAVE REQUEST OR A REQUEST TO
RESCHEDULE LEAVE. HE TESTIFIED,
"A. NO. IT'S BEEN OUR WE'VE NEVER ATTEMPTED TO FORMALIZE THE SYSTEM
OF REQUESTING.
"IN OTHER WORDS, WE NEVER PUT OUT ANY INSTRUCTIONS TO THE WORKFORCE
THAT HAD-- THAT IT HAD
TO BE IN ESTABLISHED FORMAT.
"THE PRACTICE HAS BEEN ON FORT SAM HOUSTON THAT DOCUMENTATION CAME IN
MANY DIFFERENT FORMS,
AND WE SAW NO NEED TO STANDARDIZE IT, NOR DID WE ATTEMPT TO DO SO."
(TR. 106)
"A. WELL, AS I MENTIONED TO YOU, THE DOCUMENTATION THAT WAS USED TO
REQUEST AND RESCHEDULE
LEAVE AND TO CHANGE IT IN THE PAST, WAS DONE IN MANY DIFFERENT
FORMATS.
"OUR ADVISE TO MANAGEMENT PEOPLE WAS TO HAVE EVIDENCE OF IT IN
WRITING, OF THE REQUEST,
HAVE THE APPROVAL IN WRITING SO THAT THEY HAVE NECESSARY SUPPORT
DOCUMENTS FOR ANY WAIVERS AND
REQUESTS FOR RESTORATION." (TR. 107)
WHEN ASKED THE EXTENT OF HIS PERSONAL KNOWLEDGE OF HOW THE
RESCHEDULING OF LEAVE IS HANDLED BY DIFFERENT SUPERVISORS, MR. BUCKLEY
STATED:
"THE WITNESS: WELL, I WOULD SAY THAT, THAT MOST OF THE INSTANCES I'M
AWARE OF, IF IT WERE
A CHANGE OF A COUPLE OF HOURS, OR MAYBE ONE DAY, IT MIGHT BE HANDLED
ORALLY.
"IF IT WAS A CHANGE OF ANY SIGNIFICANT, WE WOULD NORMALLY-- I THINK
MOST SUPERVISORS WOULD
EXPECT THE EMPLOYEE TO WRITE THEM A NOTE TO RESCHEDULE THEIR LEAVE.
. . . .
". . . WELL, FROM-- FROM BEING FAMILIAR WITH WHAT MOST OF OUR
PERSONNEL PRACTICES, ARE, I
WOULD SAY, FROM BEING FAMILIAR WITH THE SYSTEM IN THE PERSONNEL
OFFICE, BECAUSE THAT IS THE
WAY THE SYSTEM IS." /2/ (TR. 128-129).
I AM AWARE THAT MS. ADDIE B. VALADEZ, PRESIDENT OF LOCAL 2154, WHO
WORKS IN FINANCE AND ACCOUNTING, FIRST TESTIFIED:
"Q . . . TO YOUR KNOWLEDGE IS LEAVE SCHEDULED OR RESCHEDULED IN
WRITING WITHIN THE
BARGAINING UNIT?
"A TO MY KNOWLEDGE, WITH THE EXCEPTION OF THE DIO SITUATION WHICH WE
ARE DISCUSSING, NO,
THERE IS NOT.
"Q YOU KNOW OF NO SECTION, WHICH IS WITHIN YOUR BARGAINING UNIT IN
WHICH THE EMPLOYEES
SCHEDULE LEAVE IN WRITING?
"A I KNOW OF NONE. (TR. 81) (SEE, ALSO, TR. 89).
LATER, AS TO SCHEDULING LEAVE, MS. VALADEZ TESTIFIED:
" . . . IT CAN BE DONE EITHER ORALLY, OR IT CAN BE DONE IN WRITING
. . . .
" . . . IN MY PARTICULAR CASE, I HAVE TO SUBMIT MINE IN WRITING, YOU
SEE, BECAUSE I WAS NOT
THERE TO SUBMIT IT PRIOR TO THE TIME THAT WAS REQUIRED IN THE
CONTRACT." (TR. 90)
. . . .
"IN MY CASE, IT WAS BOTH, ORALLY, AND IN WRITING.
"AND I KNOW OF OTHERS THAT DO SUBMIT IT IN WRITING . . . " (TR. 92).
HOWEVER, MS. VALADEZ DID TESTIFY THAT SHE MADE ONLY ORAL REQUESTS TO
HER SUPERVISOR TO RESCHEDULE LEAVE (SEE, TR. 93).
HAVING EXAMINED THE TESTIMONY AND EVIDENCE CAREFULLY, I FULLY CREDIT
MR. BUCKLEY'S TESTIMONY THAT THE PRACTICE IN THE BARGAINING UNIT, EXCEPT
IN THE SUPPLY DIVISION, WAS THAT REQUESTS TO CHANGE, OR RESCHEDULE,
ANNUAL LEAVE MUST BE MADE IN WRITING, ALTHOUGH NO PARTICULAR FORMAT WAS
REQUIRED, IF THE CHANGE WERE FOR MORE THAN ONE DAY OF ANNUAL LEAVE. NOT
ONLY DID MR. BUCKLEY CREDIBLY, AND DIRECTLY, TESTIFY THAT THIS WAS THE
PRACTICE, BUT HIS TESTIMONY IS FULLY SUPPORTED BY THE PROVISION OF
SECTION 3 OF FSH REGULATION 690-14 (MARCH 9, 1976) (COMP. EXH. 2); BY
THE FACT THAT COMPLAINANT MADE NO OBJECTION TO SECTION 3 OF THE 1976
REGULATION BECAUSE "IT WAS-- HAD BEEN ESTABLISHED PRACTICE IN THE PAST;"
BY BULLETIN NO. 37, ISSUED BY MR. BUCKLEY AS CIVILIAN PERSONNEL OFFICER
ON OCTOBER 25, 1974; AND BY THE "MESSAGES AND KEY NOTES," NUMBER 6-77,
ISSUED BY MR. BUCKLEY TO SUPERVISORS AND MANAGEMENT OFFICIALS ON MARCH
10, 1977, (COMP. EXH. 20). MS. VALADEZ'S TESTIMONY TO THE CONTRARY
CONSISTED OF BROAD AND EXTRAVAGANT ASSERTIONS WHICH PROVED NOT TO BE
WHOLLY ACCURATE. ACCORDINGLY, I DO NOT CREDIT HER DENIAL AS TO THE
PREVAILING PRACTICE OF REQUIRING THE RESCHEDULING OF LEAVE IN WRITING IN
THE BARGAINING UNIT OUTSIDE THE SUPPLY DIVISION EXCEPT TO THE EXTENT
THAT SHE, IN FINANCE AND ACCOUNTING, PERSONALLY MADE ORAL REQUESTS TO
RESCHEDULE HER OWN ANNUAL LEAVE.
11. ON MARCH 10, 1977, MR. BUCKLEY ISSUED MESSAGES AND KEY NOTES TO
REMIND SUPERVISORS AND MANAGEMENT OFFICIALS THAT "THE SCHEDULING AND, AS
NECESSARY, RESCHEDULING OF THE ANNUAL LEAVE MUST BE IN WRITING" (COMP.
EXH. 20) AS THE OFFICE OF CIVILIAN PERSONNEL HAD FOUND OVER A PERIOD OF
SEVERAL YEARS THAT IN MANY CASES EMPLOYEES COULD NOT SHOW EVIDENCE THAT
ANNUAL LEAVE HAD BEEN SCHEDULED IN ADVANCE AND, THEREFORE, REQUESTS FOR
RESTORATION OF FORFEITED LEAVE, WHICH OTHERWISE HAVE BEEN GRANTED, HAD
TO BE DENIED BECAUSE OF THE ABSENCE OF DOCUMENTATION. AS MR. BUCKLEY
TESTIFIED, THE MARCH 10, 1977, MESSAGES AND KEY NOTES, WAS A REMINDER OF
THE KEY POINTS OF CIVILIAN PERSONNEL BULLETIN NO. 37, ISSUED OCTOBER 25,
1974. MR. BUCKLEY FURTHER TESTIFIED THAT THERE HAD BEEN NO CHANGE IN
POLICY AS TO THE REQUIREMENTS FOR WRITTEN DOCUMENTATION AS STATED
INITIALLY IN THE OCTOBER 25, 1974, BULLETIN.
12. THE SUPPLY DIVISION WAS NOT REQUIRING THAT REQUESTS TO
RESCHEDULE ANNUAL LEAVE BE IN WRITING AND THE MESSAGES AND KEY NOTES OF
MARCH 10, 1977, RESULTED IN A PROMPT RESPONSE BY MR. JOHN B. MORGAN,
CHIEF OF THE SUPPLY DIVISION.
FIRST, HE DECIDED THAT LEAVE RESCHEDULING REQUESTS SHOULD BE IN
WRITING (COMP. EXH. 19); AND SECOND, HE ADOPTED FOR FORMAT FOR THIS
PURPOSE A FORM DEVELOPED BY MS. PAULINE ROWE, CHIEF OF THE MATERIAL
MANAGEMENT SECTION OF THE SUPPLY DIVISION (COMP. EXH. 3). /3/ ALTHOUGH
IT DOES NOT APPEAR THAT FORMS, AS DEVISED BY MS. ROWE, WERE EVER
PREPARED, THE FORMAT WAS FOLLOWED (SEE, COMP. EXH. 15) AND AS MR.
MCCARTY'S REQUEST OF APRIL 6, 1977 (COMP. EXH. 15), SHOWS, MR. ALANIZ
RECOMMENDED APPROVAL, MS. ROWE CONCURRED AND MR. MORGAN APPROVED.
13. AFTER THE CHARGE WAS FILED (JULY 11, 1977) RESPONDENT IN
SEPTEMBER 1977, DISCONTINUED USE OF THE "FORM" ALTHOUGH THE FORMAT WAS
FOLLOWED ON DECEMBER 21, 1977 (COMP. EXH. 13).
14. ALTHOUGH NO PARTICULAR FORMAT HAS BEEN REQUIRED AFTER SEPTEMBER
1977, LEAVE RESCHEDULING REQUESTS ARE REQUIRED TO BE IN WRITING (SEE,
COMP. EXH. 14).
15. THERE WAS NO DISCUSSION WITH COMPLAINANT BEFORE MR. MORGAN
DIRECTED THAT MRS. ROWE'S FORMAT BE USED IN THE SUPPLY DIVISION; AND
COMPLAINANT SUBSEQUENTLY REFUSED TO NEGOTIATE A FORM FOR THIS PURPOSE.
16. THE CIVILIAN PERSONNEL OFFICE WAS NOT AWARE OF THE "FORM"
PRESCRIBED FOR THE SUPPLY DIVISION UNTIL COMPLAINANT FILED THE CHARGE
HEREIN.
17. MS. MIZE TESTIFIED THAT, NOTWITHSTANDING ONE OR MORE LEVELS OF
APPROVAL IN THE SUPPLY DIVISION, THE DECISION OF THE EMPLOYEE'S
IMMEDIATE SUPERVISOR CONTROLLED; THAT IF A HIGHER SUPERVISOR WERE AWARE
OF SOME PROJECT, FOR EXAMPLE, THAT SUPERVISOR WOULD GO TO THE EMPLOYEE'S
IMMEDIATE SUPERVISOR AND ASK IF SUCH PROJECT HAD BEEN CONSIDERED IN
APPROVING THE LEAVE AND IF IT HAD BEEN AND THE SUPERVISOR WAS SATISFIED
THAT THE WORK COULD BE DONE, THEN THE RESCHEDULING OF THE LEAVE WAS
APPROVED. NO RESCHEDULED LEAVE APPROVED BY AN IMMEDIATE SUPERVISOR WAS
EVER DISAPPROVED BY OTHER SUPERVISORS.
CONCLUSIONS
THE COLLECTIVE BARGAINING AGREEMENT PROVIDES THAT LEAVE WOULD BE
ADMINISTERED IN ACCORDANCE WITH FORT SAM HOUSTON REGULATION 690-14
WHICH, IN TURN, PROVIDES THAT: "NORMALLY, ALL TYPES OF LEAVE MUST BE
REQUESTED BY THE EMPLOYEE, IN WRITING WHERE APPROPRIATE, AND APPROVED BY
THE SUPERVISOR." AS EARLY AS 1974, EMPLOYEES AND SUPERVISORS WERE
ADVISED OF THE IMPORTANCE OF SCHEDULING ANNUAL IN WRITING AND WERE
SPECIFICALLY CAUTIONED THAT RESTORATION OF ANNUAL WAS DEPENDENT ON
SATISFYING, INTER ALIA, THE STATUTORY REQUIREMENT THAT ANNUAL LEAVE MUST
HAVE BEEN "SCHEDULED IN ADVANCE" AND EMPLOYEES AND SUPERVISORS WERE
FURTHER CAUTIONED THAT THE DECISION TO SCHEDULE THE LEAVE MUST HAVE BEEN
MADE IN WRITING BEFORE THE START OF THE THIRD BIWEEKLY PAY PERIOD PRIOR
TO THE END OF TEE LEAVE YEAR (IT WAS MADE CLEAR THAT THIS INCLUDED
"SCHEDULING, RESCHEDULING, OR USE OF ANNUAL LEAVE") (RES. EXH. 2).
APPENDIX B TO THE OCTOBER 25, 1974, BULLETIN NO. 37 FURTHER EMPHASIZED
WRITTEN DOCUMENTATION TO SUPPORT "THE SCHEDULING AND RESCHEDULING OF
LEAVE" IN AN APPLICATION FOR RESTORATION OF FORFEITED ANNUAL LEAVE.
APPENDIX B IS ALSO INCORPORATED AS APPENDIX B TO FSH 690-14. ALTHOUGH
FSH 690-14 WAS REVISED MARCH 9, 1976, THE RECORD IS CLEAR THAT THE
PROVISION THAT "ALL TYPES OF LEAVE MUST BE REQUESTED BY THE EMPLOYEE, IN
WRITING WHERE APPROPRIATE" WAS MERELY THE CONTINUATION OF AN EXISTING
POLICY.
FROM 1974, THE PRACTICE IN THE BARGAINING UNIT, EXCEPT THE SUPPLY
DIVISION WHICH CONSTITUTES ABOUT 1/6TH OF THE BARGAINING UNIT OR ABOUT
200 EMPLOYEES OUT OF 1200 EMPLOYEES IN THE BARGAINING UNIT, HAD BEEN
THAT REQUESTS FOR RESCHEDULING ANNUAL LEAVE FOR MORE THAN ONE DAY MUST
BE MADE IN WRITING AND WERE APPROVED IN WRITING. IN THE SUPPLY
DIVISION, MOST ANNUAL LEAVE WAS RESCHEDULED BY ORAL REQUEST BY STRIKING
OUT THE LEAVE PREVIOUSLY SHOWN ON THE SCHEDULE AND ENTERING THE
REQUESTED DATES FOR THE EMPLOYEE ON THE SCHEDULE. ALTHOUGH THIS PLACED
THE EMPLOYEE'S RESCHEDULED LEAVE ON THE LEAVE SCHEDULE, SUCH PRACTICE
DID NOT PROVIDE THE REQUIRED DOCUMENTATION REQUIRED TO PERMIT
RESTORATION OF FORFEITED ANNUAL LEAVE, AND OTHERWISE MERITORIOUS
REQUESTS HAD TO BE DENIED OVER THE YEARS BECAUSE THE EMPLOYEE COULD NOT
SHOW THAT THE LEAVE HAD BEEN SCHEDULED IN ADVANCE. ACCORDINGLY, ON
MARCH 10, 1977, THE CIVILIAN PERSONNEL OFFICER AGAIN REMINDED ALL
SUPERVISORS THAT "THE SCHEDULING AND, AS NECESSARY, RESCHEDULING OF THE
ANNUAL LEAVE MUST BE IN WRITING." (COMP. EXH. 20).
MR. MORGAN, CHIEF OF THE SUPPLY DIVISION, FOLLOWING RECEIPT OF THE
CIVILIAN PERSONNEL OFFICER'S REMINDER OF MARCH 10, 1977, DECIDED THAT
LEAVE RESCHEDULING REQUESTS SHOULD BE IN WRITING AND A FORM, OR AT LEAST
A FORMAT, DEVELOPED BY HIS CHIEF OF MATERIALS MANAGEMENT, MS. ROWE, WAS
ADOPTED BY THE SUPPLY DIVISION. THERE IS NO DISPUTE THAT THE PRACTICE
IN THE SUPPLY DIVISION HAS BEEN TO RESCHEDULE LEAVE ORALLY; THAT THE
IMMEDIATE SUPERVISOR ACTED ON THE REQUEST; AND THAT THERE WAS NO PRIOR
DISCUSSION WITH COMPLAINANT BEFORE THE SUPPLY DIVISION IMPLEMENTED ITS
"FORM." DID RESPONDENT THEREBY VIOLATE SECTION 19(A) (6) AND,
DERIVATIVELY, SECTION 19(A)(1)?
SECTION 19(A)(6) PROVIDES THAT MANAGEMENT SHALL NOT
"(6) REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH A LABOR
ORGANIZATION AS REQUIRED BY THIS
ORDER."
OF COURSE, SECTION 11(A) OF THE ORDER PROVIDES, IN PART, THAT:
"(A) AN AGENCY AND A LABOR ORGANIZATION THAT HAS BEEN ACCORDED
EXCLUSIVE RECOGNITION
. . . SHALL MEET AT REASONABLE TIMES AND CONFER IN GOOD FAITH WITH
RESPECT TO PERSONNEL
POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS . .
."
AND SECTION 10(E) OF THE ORDER PROVIDES, IN PART, AS FOLLOWS:
"(E) WHEN A LABOR ORGANIZATION HAS BEEN ACCORDED EXCLUSIVE
RECOGNITION, IT IS THE EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES IN THE UNIT AND IS ENTITLED TO ACT FOR
AND TO NEGOTIATE AGREEMENTS
COVERING ALL EMPLOYEES IN THE UNIT . . . "
COMPLAINANT HAS NEGOTIATED AN AGREEMENT FOR ALL EMPLOYEES IN THE UNIT
WHICH PROVIDES IN ARTICLE XVI, SECTION 16-1, THAT LEAVE WILL BE
ADMINISTERED IN ACCORDANCE WITH FORT SAM HOUSTON REGULATION 690-14. FSH
690-14 PROVIDES THAT ALL TYPES OF LEAVE MUST BE REQUESTED BY THE
EMPLOYEE, IN WRITING WHERE APPROPRIATE, AND APPROVED BY THE SUPERVISOR.
THE EXCEPTIONS FROM THE "IN WRITING" REQUIREMENT, AS EXPLAINED IN
690-14, DO NOT INCLUDE REQUESTS TO RESCHEDULE ANNUAL LEAVE EXCEPT TO THE
EXTENT THAT EMERGENCY LEAVE, SICK LEAVE, OR POSSIBLY SOME OTHER
SPECIFIED CIRCUMSTANCE, IS INVOLVED. EXCEPT FOR EMERGENCY TYPE
SITUATIONS, AS NOTED, RESPONDENT'S INSTRUCTIONS SINCE AT LEAST 1974 HAVE
MADE IT CLEAR THAT REQUESTS TO RESCHEDULE ANNUAL LEAVE SHOULD BE IN
WRITING AND MUST BE IN WRITING TO SUPPORT REQUESTS FOR THE RESTORATION
OF ANNUAL LEAVE; AND THE PRACTICE IN THE BARGAINING UNIT, EXCEPT IN THE
SUPPLY DIVISION, HAD BEEN SINCE 1914 THAT REQUESTS TO RESCHEDULE ANNUAL
LEAVE MUST BE MADE IN WRITING AND APPROVED IN WRITING, ALTHOUGH NO
PARTICULAR FORM HAD BEEN REQUIRED. ACCORDINGLY, AS THE COLLECTIVE
BARGAINING AGREEMENT PROVIDED THAT LEAVE SHOULD BE ADMINISTERED IN
ACCORDANCE WITH FSH REGULATION 690-14; FSH 690-14 REQUIRED THAT ALL
TYPES OF LEAVE MUST BE REQUESTED BY THE EMPLOYEE IN WRITING WHERE
APPROPRIATE; RESPONDENT'S INSTRUCTIONS SINCE AT LEAST 1914 HAD MADE IT
CLEAR THAT REQUESTS TO RESCHEDULE ANNUAL LEAVE SHOULD BE IN WRITING;
AND THE PRACTICE IN THE BARGAINING UNIT, EXCEPT IN THE SUPPLY DIVISION,
HAD BEEN THAT REQUESTS TO RESCHEDULE ANNUAL LEAVE MUST BE SUBMITTED BY
THE EMPLOYEE IN WRITING, THE DECISION OF THE SUPPLY DIVISION IN APRIL
1977, TO REQUIRE THAT REQUESTS TO RESCHEDULE ANNUAL LEAVE BE SUBMITTED
IN WRITING WAS A REAFFIRMATION OF RESPONDENT'S EXISTING POLICY AND
RESPONDENT'S CONDUCT WAS NOT INCONSISTENT WITH ITS BARGAINING OBLIGATION
UNDER THE ORDER. ALABAMA NATIONAL GUARD, MONTGOMERY, ALABAMA AND LOCAL
1445, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, A/SLMR NO. 895, 7 A/SLMR
767 (1977). ALTHOUGH IN FORM, IT MIGHT APPEAR THAT THE DECISION OF THE
IMMEDIATE SUPERVISOR AFTER APRIL, 1977, WAS NOT CONTROLLING, THE RECORD
IS CLEAR THAT THE DECISION OF THE IMMEDIATE SUPERVISOR AFTER APRIL,
1977, DID CONTROL; THAT THE ADDED LEVELS OF "APPROVAL" CONSTITUTED NO
MORE THAN AN EXCESS OF BUREAUCRATIC BUSY WORK WHICH PROVIDED ONLY
WINDOW
DRESSING; AND THAT THERE WAS NO CHANGE IN ANY EXISTING TERM OR
CONDITION OF EMPLOYMENT. DEPARTMENT OF TREASURY, INTERNAL REVENUE
SERVICE, BROOKHAVEN SERVICE CENTER AND NATIONAL TREASURY EMPLOYEES UNION
AND NTEU CHAPTER 099, A/SLMR NO. 814, 7 A/SLMR 255 (1977).
SECTION 11(A) OF THE ORDER IS NOT INTENDED TO EMBRACE EVERY ISSUE OF
INTEREST TO AGENCIES AND EXCLUSIVE REPRESENTATIVES AND WHICH MAY
INDIRECTLY AFFECT EMPLOYEES. RATHER, SECTION 11(A) ENCOMPASSES THOSE
MATTERS WHICH MATERIALLY AFFECT AND HAVE A SUBSTANTIAL IMPACT ON
PERSONNEL POLICIES, PRACTICES, AND GENERAL WORKING CONDITIONS.
DEPARTMENT OF DEFENSE, AIR NATIONAL GUARD, TEXAS AIR NATIONAL GUARD,
CAMP MABRY, AUSTIN, TEXAS AND TEXAS AIR GUARD AFGE COUNCIL OF LOCALS,
A/SLMR NO. 738, 6 A/SLMR 591 (1976). HERE, OF COURSE, FSH REGULATION
690-14 REQUIRED THAT LEAVE, INCLUDING REQUESTS TO RESCHEDULE ANNUAL
LEAVE, BE SUBMITTED BY THE EMPLOYEE IN WRITING. ALTHOUGH THE PRACTICE
IN THE SUPPLY DIVISION HAD BEEN TO RESCHEDULE ANNUAL LEAVE ON ORAL
REQUEST, ENFORCEMENT OF THE REQUIREMENT, WHICH WAS ESTABLISHED POLICY IS
THE BARGAINING UNIT, IN THE SUPPLY DIVISION NEITHER CHANGED ANY
ESTABLISHED WORKING CONDITION NOR DID IT HAVE ANY IMPACT ON ANY
ESTABLISHED WORKING CONDITION. NOR DID THE "FORM" ADOPTED BY THE SUPPLY
DIVISION MATERIALLY AFFECT, OR HAVE A SUBSTANTIAL IMPACT ON PERSONNEL
POLICIES, PRACTICES, OR MATTERS AFFECTING WORKING CONDITIONS. INDEED,
THE "FORM" DID NO MORE THAN REQUIRE THAT THE REQUEST PREVIOUSLY MADE
ORALLY BE STATED IN WRITING. ACCORDINGLY, RESPONDENT DID NOT VIOLATE
SECTION 19(A)(1) AND (6) BY REQUIRING THE USE OF SUCH "FORM." SOCIAL
SECURITY ADMINISTRATION, BUREAU OF HEARINGS AND APPEALS AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3615, A/SLMR NO. 979
(1978); SOCIAL SECURITY ADMINISTRATION, BUREAU OF HEARINGS AND APPEALS,
ARLINGTON, VIRGINIA, CASE NO. 22-08461(CA), DEPARTMENT OF LABOR LETTER
1085 (1978).
SINCE COMPLAINANT HAS FAILED TO PROVE A VIOLATION OF SECTION 19(A)
(6) OR (1) OF EXECUTIVE ORDER 11491, AS AMENDED, THE COMPLAINT IS HEREBY
DISMISSED.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED:
WASHINGTON, D.C.
/1A/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM
ACT OF 1978 (92 STAT. 1224), THE INSTANT CASE IS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/1/ SECTION 3A. CONTINUES "EXCEPTIONS ARE EXPLAINED IN PERTINENT
SECTIONS OF THIS REGULATION." NEITHER PARTY HAS REFERRED TO, OR RELIED
UPON, THIS SENTENCE. IT IS NOTED, THAT AN EXCEPTION IS MADE IN SECTION
7, FOR EMERGENCY LEAVE AND PROVIDES THAT "THIS NOTIFICATION MAY BE
ACCOMPLISHED BY TELEPHONE . . ." IT IS FURTHER NOTED THAT SECTION 9 C.3
(3), SICK LEAVE, PROVIDES: "WHEN AN EMPLOYEE IS UNABLE TO REPORT FOR
WORK BECAUSE OF ILLNESS, HE MUST INSURE THAT HIS SUPERVISOR IS NOTIFIED
. . ." THESE ARE SIMPLY TWO EXAMPLES OF EXCEPTIONS FROM THE GENERAL
POLICY THAT LEAVE BE REQUESTED IN WRITING. NO ATTEMPT HAS BEEN MADE TO
CATALOGUE ALL "EXCEPTIONS" SET FORTH IN THE REGULATION.
/2/ MR. BUCKLEY WAS ASKED ABOUT DISCUSSIONS HE HAD WITH COMPLAINANT
WHEN THE CHARGE HEREIN WAS FILED AND STATED, IN PART, AS FOLLOWS:
"A WELL, AS I REMEMBER, OUR DISCUSSION ON THE SUBJECT-- WE INDICATED,
I THINK, INITIALLY THAT WE DID NOT FEEL THIS WAS A CHANGE IN PAST
PRACTICE, BUT IF IT WOULD RESOLVE, YOU KNOW, THE PROBLEM, WE WERE
WILLING TO WITHDRAW THE FORM, ALTHOUGH WE DID NOT ACKNOWLEDGE THAT IT
WAS A VIOLATION OR A CHANGE IN PERSONNEL POLICY, IT WAS MERELY A
DIFFERENT WAY OF DOING A POLICY THAT EXISTED IN THE PAST." (TR. 111).
/3/ FORM DA 2496, ENTITLED "DISPOSITION FORM", IS A BLANK FORM USED
FOR A GREAT VARIETY OF COMMUNICATIONS. MS. ROWE TYPED ON A BLANK DA
2496:
"1. REQUEST ANNUAL LEAVE CURRENTLY SCHEDULED FOR . . . BE CHANGED TO
. . .
"2. REASON:
(EMPLOYEE)
"CONCUR/NONCONCUR PAULINE G. ROWE
CMMS
"APPROVE/DISAPPROVED JOHN B. MORGAN
CHIEF