The fifty-nine-minute rule: white Christmas, gray area?

Army Lawyer, March, 2006 by Mike Litak

Current GAO guidance evinces the continuing validity of this interpretation of authority to grant administrative leave. (85)

The Federal Labor Relations Authority (FLRA) on Early Releases for Special Occasions

Collective bargaining agreements also may specifically address and restrict the use of the fifty-nine-minute rule. (86) The wide discretion afforded to agencies in determining the lawful purposes for such absences, was pertinently illustrated in the 1996 FLRA decision in Dep't of Veterans Affairs Medical Center Asheville, North Carolina and AFGE Local 446, AFLCIO. (87) In that case, the medical center unilaterally discontinued a past practice of granting employees four hours of administrative leave each year for their birthdays. (88) The union filed an unfair labor practice charge, (89) the agency admitted it had failed to meet its obligation to negotiate the impact and implementation of the discontinuation (90) and focused on the legality of the practice, with the nature of the remedy being the only issue in dispute. (91)

Speaking against a status quo ante remedy, the agency argued that its past practice was illegal and thus could not be given retroactive effect since, among other points, excused absence was not historically granted on a routine basis and was intended for purposes such as voting, registering to vote, and excusing tardiness. (92) Further, the agency argued, employee birthdays failed to meet the criteria in an agency directive that prescribed the use of excused absences for activities considered to substantially benefit the agency in accomplishing its mission or functions, or that clearly enhanced the employees' abilities to perform in their positions. (93) Finally of note, the agency argued that the practice was tantamount to granting holidays, which the agency had no local authority to do. (94)

The Administrative Law Judge (ALJ), nonetheless, found the agency's arguments did not establish that the practice was illegal. (95) The judge observed that whether an activity would benefit an agency mission or enhance an employee's ability to perform was "not set in concrete," but remained a subjective determination. (96) The ALJ granted a summary judgment finding a violation of 5 U.S.C. [subsection] 7116(a)(1) and (5) and ordered a status quo ante remedy, but limited its retroactivity on equitable grounds to the calendar year of the decision. (97) The agency filed exceptions for FLRA consideration. (98)

Among other issues, the agency again argued that a status quo ante remedy was improper where a past practice had been illegal, emphasizing that the FPM and FPM Supplement provided discretion to grant administrative leave "only in circumstances where there [was] a Government or civic interest." (99) Although noting that the relevant FPM provisions had been abolished as of 31 December 1994, (100) the Authority found that the agency "had discretion while the FPM was in effect to grant brief periods of excused absence in connection with employee birthdays and [especially significant to our discussion, there existed] no basis argued or apparent on which to conclude that such discretion was eliminated by abolishment of the FPM." (101) In dismissing the agency's FPM-related concerns, the Authority noted that the agency had pointed to "no specific portion of the FPM that clearly established that the practice was unlawful" and the fact that "employee birthdays" was not listed among FPM examples was not dispositive of agency discretion to grant brief absences for birthdays. (102)