November 21, 2002
In the Matter of the Petition by
DOWARD W. THOMPSON
2807 Swift Way
at
Sacramento, CA 95822-5444
P.S. Docket No. DCA 02-430
APPEARANCE FOR PETITIONER:
Charles Scialla
453 Preakness Avenue, #5
Paterson, NJ 07502-1121
APPEARANCE FOR RESPONDENT:
Gerald Cager
Labor Relations Specialist
United States Postal Service
3775 Industrial Boulevard
West Sacramento, CA 95799-0061
FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982
Petitioner, Doward W. Thompson, filed a timely Petition for Hearing after receiving a Notice of Involuntary Administrative Salary Offsets dated August 26, 2002, from the Manager of Accounting Services for the Sacramento District. This Notice stated the Postal Service's intention to withhold $382.18 from Petitioner's salary to recover a salary overpayment.
In a telephone conference with both representatives on October 9, 2002, after an attempt at settlement had failed, the parties agreed that this case would be decided on written submissions rather than an oral hearing. The parties were given time to submit additional evidence and argument, and both parties did so. The following findings of fact are based on all the material submitted by the parties.
FINDINGS OF FACT
1. On December 28, 2001, Petitioner was issued a Notice of Proposed Removal, based on alleged misconduct on the job. (Answer, Ex. 7).
2. On March 27, 2002, Kenneth Haywood, Senior Plant Manager for the Sacramento Processing & Distribution Center, decided to hold the removal action in abeyance for two years, based on some mitigating circumstances and Petitioner's agreement to attend certain training. In his March 27 letter to Petitioner, Mr. Haywood noted that Petitioner agreed to attend a "communication class," and to "relay to me what skills you learned in that class and how you plan to implement those skills in the workplace." Mr. Haywood's letter also said, "I will closely monitor your performance as related to this area of concern." (Answer, Ex. 6; Respondent's supplemental filing, Tab 6).
3. Prior to the initiation of the removal action, Petitioner's regular work schedule included some nights and Sundays, for which he received premium pay. After the removal action was initiated, and while Mr. Haywood was reviewing the case and meeting with Petitioner's representatives to determine what action to take, Petitioner was placed on administrative leave, i.e., he was not working. Once Mr. Haywood made his decision on March 27, 2002, Petitioner returned to work. (Petitioner's October 17, 2002 submission, Ex. 1).
4. An employee on administrative leave is paid the basic salary for his/her pay grade. Because Petitioner's status change was not entered into Postal Service payroll records when he was placed on administrative leave, Petitioner continued to be paid premium pay for night and Sunday work for pay periods 3-6 of 2002. The net total for this premium pay was $382.18. (Answer, Exs. 3 and 4; Respondent's supplemental filing, Tabs 1-4; Employee and Labor Relations Manual (ELM) §519.1).
5. On April 3, 2002, Mr. Haywood completed eight pay adjustment forms, one for each week of pay periods 3-6, indicating that Petitioner should not have been credited with any night or Sunday work during this time and that all hours should be shown as administrative leave. (Answer, Ex. 5).
6. On June 19, 2002, Petitioner was issued an invoice for $382.18. His representative submitted a letter to Mr. Haywood requesting reconsideration. This was denied and the Notice of Involuntary Administrative Salary Offsets was issued on August 26, 2002. (Petitioner's October 17, 2002 submission, Ex. 1; Answer, Ex. 2).
DECISION
Respondent's position is simply that, in accordance with the rules set forth in the ELM and Handbook F-21, Time and Attendance, an employee is only entitled to premium pay for night work or Sunday work when the employee actually works nights or Sundays and an employee is not entitled to premium pay while on leave.[1] There is no question in this case that Petitioner did not work any nights or Sundays during pay periods 3-6 of 2002.
Petitioner's argument is based on another section of the ELM dealing with “Back Pay," which states:
436.1 Corrective Entitlement
436.11 An employee or former employee is entitled to receive back pay for the period during which an unjustified or unwarranted personnel action was in effect which terminated or reduced the basic compensation, allowances, differentials, and employment benefits which the employee normally would have earned during the period.[2]
Petitioner contends that because management did not remove or suspend him from work, and took no punitive action that would have cost him any part of his salary, he is entitled to be paid the salary he would have earned had he not been placed on administrative leave.
I cannot agree with Petitioner's reading of ELM §436.11. The fact that Mr. Haywood mitigated the original proposed removal action does not equate to a finding that placing Petitioner on administrative leave while the matter was being reviewed was an "unjustified or unwarranted personnel action." To the contrary, the fact that Petitioner agreed to attend a training class as part of the agreement for management to grant him what amounts to a period of probation suggests that the personnel action was not unjustified or unwarranted.
The Petition is denied. Respondent may collect $382.18 from Petitioner's salary.
Bruce R. Houston
Chief Administrative Law Judge