Personal Expenses and Canceled Leave

If an agency cancels an employee’s leave that had been approved, should the agency be liable for the employee’s expenses? An agency and a union agreed to such a provision but it was disapproved by by the agency as being outside the agency’s duty to bargain. A federal court has agreed with that position.

The federal appeals court in D.C. has upheld the Federal Labor Relations Authority’s decision that requiring an agency to reimburse personal expenses lost when leave is canceled would be contrary to law. (Association of Civilian Technicians, Puerto Rico Army Chapter v. Federal Labor Relations Authority, C.A.D.C. No. 07-1422, 8/5/08)

This is the third time the appeals court has ruled on the long-standing negotiability dispute between the ACT and the Department of Defense. In the first two decisions, the appeals court sent the matter back to the FLRA for further deliberations. This third time, the court has denied ACT’s petition and instead defers to “that reasonable determination” of the FLRA that the matter is not an appropriate arrangement under the federal labor statute. (Opinion p. 2)

Let’s back up. ACT and the Puerto Rico National Guard negotiated a contract provision that would have required the agency to reimburse unit employees for “lost personal travel and recreational expenses” in the event the agency cancels leave that previously had been approved. (p. 2) When the contract was submitted to the agency head for approval, the Secretary of Defense disapproved this particular provision since it would require the expenditure of appropriated funds and therefore was outside of the agency’s duty to bargain. (p. 3)

ACT appealed to the FLRA. The Authority sided with the agency, reasoning that the expenditures would be for purely personal expenses and therefore are not legal under the Travel Expenses Act. (p. 3)

In the first appeal to the D.C. Circuit, the court bounced the case back to the FLRA and ordered it to consider whether the expenditures would be authorized by the collective bargaining statute that allows negotiation of “appropriate arrangements” for the adverse effects on employees of management decisions. However, on remand the FLRA apparently did not follow the court’s instructions since it did not address the “appropriate arrangement” question. This led to the second trip to the appeals court and another remand by the court back to the FLRA to get it right this time. (pp. 4-5) The court pointed out in its second decision that if the FLRA “adequately explained” any conclusion that the contract provision was not an appropriate arrangement, that “would presumably be the end of the matter….” (p. 5)

FLRA again dismissed ACT’s appeal, holding that this would not be an appropriate arrangement since it would “excessively interfere” with management’s right to assign work. (p. 5)

ACT filed a third petition for review with the appeals court; however, this time the court affirmed FLRA’s decision, just as it had pretty much promised it would do if the agency addressed the appropriate arrangement issue. The court cited the “considerable discretion” that FLRA is entitled to by the courts when it “exercises its special function of applying the general provisions of the Act to the complexities of federal labor relations. ” (pp. 5-6) Since the Authority has provided an “adequate explanation” as to why this provision is not an “appropriate arrangement” within the meaning of the federal labor statute, “that does indeed end the matter,” says the court. (p. 11)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.