BACKGROUND: On 18 Jun 01 the following Chapter Advisory was issued on the use of annual leave in conjunction with official international travel:
The following directive obtained by the union on 15 Jun 01 appears to be authoritative:
Please forward the following new policy to anyone who submits an international travel request that contains more than two (2) days of annual leave. Ask them to revise their leave plans ASAP to be consistent with the new policy.
New Policy on Leave in Conjunction w/International Travel
The following policy supercedes previous FDA policy. The changes are highlighted. We apologize for any inconvenience that this may cause, however the Office of the Secretary just notified us of their position this week. We will send an all hands e-mail regarding this new policy.
The policy is as follows:
Walter M. Batts
The union was not given prior notice and an opportunity to negotiate the above "new" (used four times in the text of the message) policy which "supercedes [should be supersedes] previous FDA policy" as required by statute. This constitutes an Unfair Labor Practice within the meaning of the statute [5 USC sections 7116(a)(5) and 7116(a)(8)]. The union intends to fully prosecute this violation.
ADVISORY. Bargaining unit employees are reminded that under the Collective Bargaining Agreement, Article 18, Section 9, that FDA has agreed that "if an employee made financial commitments or otherwise incurred costs based on management's approval of annual leave and then the approval is withdrawn, the Employer will reimburse the employee for all costs or commitments.
UPDATE: NTEU National and NTEU Chapter 282 informed DHHS and FDA of the union's position on the change in working conditions that had not been negotiated as required by law and filed a Contract Article 60 notice of intent to file a ULP on 20 Jun 01. In a 22 Jun 01 Memorandum to Dr. Schwetz, the DHHS Deputy Assistant Secretary for Human Resources told Dr. Schwetz that Walter Batts' 18 Jun 01 "direction and guidance covering procedures for requesting approval for international travel""must be rescinded and the necessary steps taken to assure that management meets its obligations in implementing the change."
On 27 Jun 01, FDA sent an e-mail to FDA HQ employees stating that "if an emergency causes FDA to cancel your approved annual leave, we do not believe the law permits the agency to reimburse you for lost deposits and similar expenses." FDA also asserted, "The FDA works hard to make its work place family friendly. Consequently, we hope to and usually do avoid canceling previously approved leave." FDA also pointed out that the applicable Contract provision begins, "Within the bounds of law..."
On 2 July 01, FDA notified all FDA employees that Batts' 18 Jun 01 directive would no longer apply to FDA employees represented by NTEU (and AFGE represented employees in Minneapolis). The 18 Jun 01 directive remains in effect for all other FDA employees, i.e. non-bargaining unit employees.
The 18 Jun 01 Chapter Advisory on annual leave in conjunction with official travel is moot as HHS rescinded this new direction and guidance on annual leave in conjunction with official travel on 22 Jun 01. (The Chapter assumes that as the direction and guidance were in effect for less than five business days, few bargaining unit travelers were adversely affected. The Chapter of course did not know in advance how long the directive would be in force or what the exact consequences would be.)
The proper Contract Article cited should have been Article 15 and not Article 18.
The union like FDA never advocates, counsels or advises any action that is clearly known to be illegal.
The union like FDA never knowingly engages in any action clearly known to be illegal.
The 27 Jun 01 FDA e-mail and Article 15, Section 9 both incorporate FDA's long standing policy and practice of canceling previously approved annual leave only in an emergency.
To the union's best knowledge and belief Batts' 18 Jun 01 directive which had not been sent to the union was not based on an emergency situation.
As the words of the Contract reimbursement clause seek to convey, at the time the Contract was being negotiated (Spring '99) it was not clear what kinds of personal travel commitments could legally be reimbursed. FDA, in fact, approved and signed the Contract when it could have contested the now offending clause under 5 USC 7114(c)(2) [agreements must be in accordance with applicable law, rule or regulation].
The effective date of the NTEU-FDA Contract was 1 Oct 99.
The 27 Jun 01 FDA e-mail is based on a 21 Jul 00 Federal Labor Relations Authority decision of Association of Civilian Technicians Puerto Rico Army Chapter (Union) v. U.S Department of Defense National Guard Bureau Puerto Rico National Guard San Juan, Puerto Rico (Agency), 56 FLRA 493, 2000. In this case, the FLRA considered among other things the negotiability of a clause that proposed, "Once leave has be[en] approved and the employer has a compelling need to cancel the previously approved leave, the employer agrees not to subject the employee to a loss of funds expended in the planning of leave (i.e., hotel reservations, airline tickets, etc)." The FLRA decided that this provision was contrary to law (and therefore not negotiable).
Although it can be argued that a compelling situation is not equivalent to an emergency situation, the Chapter thanks FDA for bringing this case to its attention and providing an opportunity to further discuss the reimbursement Contract clause. In Association of Civilian Technicians the FLRA stated that it would look to the Comptroller General to determine whether an agency can pay employee travel expenses. The FLRA then read a string of Comptroller General Decisions to conclude that purely personal expenses, such as forfeited hotel room deposits, dependents' travel costs, and increased costs for alternative flight reservations may not be reimbursed upon the cancellation of approved annual leave.
Fortunately for American consumers and consequently for FDA employees emergencies and cancellation of previously approved leave is a rare event at FDA and few FDA employees should even have had to attempt to use the Contract reimbursement clause. Additionally reassuring is FDA's forceful claim to work hard "to make its work place family friendly" (FDA employees are part of a family) and to "hope to and usually do avoid canceling previously approved leave".
The Chapter will ask NTEU National to reverse the Comptroller General's Decision on reimbursement of personal expenses upon cancellation of approved annual leave in emergency situations. For most traditional non-public safety agencies such events should be rare and it appears to be greatly unfair to additionally penalize employees responding to emergencies which are not part and parcel of their job.
REVISED CHAPTER ADVISORY.
Because of the above clarification in the law regarding reimbursement of personal expenses upon cancellation of approved annual leave in compelling situations, it may not be prudent to rely on Contract Article 15, Section 9 in the rare FDA emergency situation.
Updated 25 Aug 01