In re Grant of Administrative Leave Under Arbitration Award

Citation53 Comp.Gen. 1054
Decision Date25 June 1974
Docket NumberB-179711
PartiesIN THE MATTER OF THE GRANT OF ADMINISTRATIVE LEAVE UNDER ARBITRATION AWARD
CourtComptroller General of the United States

Arbitration - award - grant of administrative leave - implementation by agency - no legal authority employee who was injured and unable to perform his regular duties but who could perform other limited duties submitted grievance alleging that agency did not comply with labor-management agreement in that it did not "make every effort" to find a limited duty position for him. Recommendation of arbitrator who upheld grievance that employee be granted 30 days administrative leave May not be implemented by agency since there is no legal authority to grant administrative leave in the circumstances. Arbitration - award - implementation by agency - of purpose - grant of back pay although agency May not properly implement arbitrator's award granting employee whose grievance was upheld 30 days administrative leave since no legal authority exists for such leave, it May implement the purpose of award by granting employee back pay under 5 U.S.C. 5596 if it is found that had the agency not violated collective bargaining agreement by not making every effort to find the employee an alternate job when he was incapacitated for performance of his regular duties a job would have been found for the employee. However, arbitrator's award is advisory only and May be implemented at the discretion of the agency.

This matter involves a request for an advance decision as to whether an arbitration award granting administrative leave on a retroactive basis to Mr. Gerald l. Mitchell, an employee of the puget sound naval shipyard, May properly be implemented.

The facts in the matter as stated in the arbitrator's advisory opinion indicate that Mr. Mitchell was employed by the shipyard as an "outside machinist-marine" and that on May 7, 1971, while working aboard a nuclear submarine, he sprained his lower back and as a result was on sick leave for a period of one week. Upon returning to work the shipyard dispensary placed limitations on the type of work he could perform, in general precluding him from working in confined or restricted locations and limiting the weight he could lift. These work limitations made it impossible for Mr. Mitchell to perform his normal job, although he was fit to perform other less demanding work. When he sought such duty from the personnel department, he was informed that no limited duty job was available and he was sent home, where he remained on leave for about 1 month. He returned to work on June 17, 1971, with the same work restrictions, and his immediate supervisor found him a desk job and the personnel department arranged for him to perform this limited duty from June 17, 1971, to June 30, 1971, when Mr. Mitchell returned to his regular position.

Subsequently on August 15, 1972, the same back injury caused the dispensary to again restrict Mr. Mitchell to limited duty. He reported to the personnel department and requested a limited duty assignment. That department made a short phone call to the Administrative Office of Mr. Mitchell's shop and was advised that no such duty was available. He was once again sent home. On September 15, 1972, he again reported to the personnel department seeking limited duty work and was again advised after a short telephone call to his shop that no limited duty work was available and he was once more sent home. On September 19, 1972, he returned to his machinist job on a regular basis.

Thereafter Mr. Mitchell and his union filed a grievance claiming that the shipyard had violated the provisions of section 8 of article XII of a collective-bargaining agreement between the union and the shipyard. That section provides that the employer will "make every effort" to place an employee, assigned a temporary restricted work classification, on a job, if available, within the prescribed restriction. The matter was submitted to arbitration and the arbitrator in an advisory opinion concluded that the shipyard had violated the terms of the agreement in that it was not shown that the shipyard had made every effort to place the employee in a limited duty position. However, the arbitrator did not find that a limited duty position for which Mr Mitchell was qualified was available at any time during the period he was in a limited duty category and on leave. The arbitrator then made the following award:

It is the judgment of the arbitrator that mitchell should be placed on administrative leave status from August 15, 1972, through September 15, 1972, in settlement of this grievance. It is the arbitrator's understanding that this result is the equivalent of "being made whole" for one month's wage and benefits.

The agency has accepted the finding of the arbitrator that the terms and conditions of the agreement providing that the employer would make every effort to place an employee on a job when assigned a temporary restricted work...

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18 cases
  • In re Retroactive Promotion Pursuant to Arbitration Award
    • United States
    • Comptroller General of the United States
    • 30 Diciembre 1974
    ...... retroactive promotion under provisions of 5 U.S.C. 5596. Arbitration - award - modification ... personnel office for administrative processing. However, the. personnel office failed to process ms. ... allowances, differentials, and leave account (limiting the. accumulation to the maximum prescribed by law or ... award modified to retroactively grant ms. Copeland a. promotion to grade gs-9 together with full back pay and. ......
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    • Comptroller General of the United States
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    ...... under back pay act, 5 U.S.C. 5596 (1970), and ... back pay award. . . The. back pay act of 1966, 5 ... . . (2) the Administrative Office of the United States courts;. . . (3) ... not be credited, under this section, leave in an amount that. would cause the amount of ......
  • Charles E. King
    • United States
    • Comptroller General of the United States
    • 5 Febrero 1975
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