Internal Revenue Service, Birmingham District Office (Activity) and National Treasury Employees Union, NTEU Chapter 12 (Union)



[ v06 p143 ]
06:0143(28)AR
The decision of the Authority follows:


 6 FLRA No. 28
 
 INTERNAL REVENUE SERVICE,
 BIRMINGHAM DISTRICT OFFICE
 Activity
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION,
 NTEU CHAPTER 12
 Union
 
                                            Case No. O-AR-89
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR SAMUEL EDES FILED BY BOTH THE AGENCY AND THE UNION UNDER
 SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (5 U.S.C. 7122(A)).
 
    ACCORDING TO THE ARBITRATOR THIS GRIEVANCE AROSE WHEN THE ACTIVITY
 ANNOUNCED A VACANCY IN A GS-13 POSITION IN SEPTEMBER 1977.  FIVE
 ACTIVITY EMPLOYEES APPLIED FOR THE POSITION.  THE RANKING OFFICIAL GAVE
 THE FIVE APPLICANTS SCORES RANGING FROM 31.08 TO 33.72.  HE THEN SET THE
 SCORE FOR THE "HIGHLY QUALIFIED LIST AT 35.  SINCE NONE OF THE
 CANDIDATES RECEIVED THAT SCORE, NONE WERE CERTIFIED FOR PROMOTION.
 SUBSEQUENTLY, IN OCTOBER 1977 THE VACANCY WAS AGAIN ANNOUNCED, BUT THIS
 TIME ON A REGIONAL BASIS ALLOWING EMPLOYEES OUTSIDE OF THE ACTIVITY TO
 COMPETE.  THE FIVE APPLICANTS WHO HAD APPLIED FOR THE POSITION WHEN IT
 WAS FIRST ANNOUNCED AGAIN APPLIED, ALONG WITH SIX OTHERS.  EVENTUALLY,
 ONE OF THE CANDIDATES WAS SELECTED FOR THE POSITION.  THE SELECTED
 EMPLOYEE WAS NOT ONE OF THE ORIGINAL FIVE APPLICANTS.  THEREAFTER, THREE
 OF THE ORIGINAL FIVE APPLICANTS FILED INDIVIDUAL GRIEVANCES OVER VARIOUS
 ACTIVITY ACTIONS WITH RESPECT TO BOTH THE SEPTEMBER AND OCTOBER RATINGS
 AND RANKINGS.  TWO OF THE ORIGINAL FIVE APPLICANTS DID NOT FILE
 GRIEVANCES.  THE THREE GRIEVANCES WERE PRESENTED TO THE ARBITRATOR AT
 ONE HEARING.  THE ARBITRATOR STATED THE ISSUES AS FOLLOWS:
 
    THE KEY ISSUES HERE PLACED BY THE PARTIES FOR DETERMINATION BY THE
 ARBITRATOR ARE WHETHER
 
    (THE THREE GRIEVANTS) WERE EVALUATED AND RANKED AND THEIR PROMOTION
 APPLICATIONS FAIRLY AND
 
    OBJECTIVELY PROCESSED AND ACTED UPON IN ACCORDANCE WITH THE
 PROVISIONS OF THE APPLICABLE
 
    AGREEMENT BETWEEN THE PARTIES AS RESPECTS THE PROMOTION PROCEEDINGS
 IN SEPTEMBER 1977 AND/OR
 
    OCTOBER 1977. . . .  IN THE EVENT THAT CONTRACT VIOLATIONS ARE FOUND
 TO HAVE OCCURRED, THE
 
    ARBITRATOR IS REQUIRED TO ISSUE AN AWARD EMBODYING THE REMEDY TO BE
 APPLIED TO CORRECT THE
 
    VIOLATIONS.  /1/
 
    THE ARBITRATOR DETERMINED THAT THE PROCEDURES SET FORTH IN THE
 COLLECTIVE BARGAINING AGREEMENT CONCERNING PROMOTION ACTIONS HAD BEEN
 "VIOLATED IN SUBSTANTIAL RESPECTS" BY THE ACTIVITY WITH REGARD TO BOTH
 THE SEPTEMBER AND OCTOBER APPRAISALS AND RANKINGS.  WITH RESPECT TO A
 REMEDY FOR THE VIOLATIONS, THE ARBITRATOR CONSIDERED VARIOUS
 ALTERNATIVES AND SPECIFIC CONTRACT PROVISIONS /2/ AND MADE THE FOLLOWING
 AWARD:
 
    1.  THE AGENCY, AS DETAILED IN THIS OPINION, VIOLATED ARTICLE 7 AND
 ARTICLE 9 OF THE
 
    AGREEMENT IN RESPECT TO THE PROCEDURES APPLICABLE TO THE PROMOTION
 APPRAISAL AND RANKING OF
 
    (THE GRIEVANTS) IN SEPTEMBER 1977, IN FAILING TO IDENTIFY THE BEST
 QUALIFIED CANDIDATES AND IN
 
    CONSEQUENCE POSTING THE GS-13 VACANCY IN AN EXPANDED AREA.
 
    2.  THE AGENCY, AS DETAILED IN THIS OPINION, VIOLATED ARTICLE 7 AND
 ARTICLE 9 OF THE
 
    AGREEMENT IN RESPECT TO (THE GRIEVANTS) IN RESPECT TO THEIR RANKING
 IN OCTOBER 1977.
 
   .          .          .          .
 
 
    4.  (ALL FIVE ORIGINAL APPLICANTS) SHALL BE DEEMED BEST QUALIFIED AND
 THEIR NAMES SHALL BE
 
    SUBMITTED ON A SINGLE CERTIFICATE TO THE SELECTING OFFICIAL FOR THE
 NEXT GS-13 VACANCY.
 
    THE UNION FILED AN EXCEPTION TO PART 4 OF THE ARBITRATOR'S AWARD
 UNDER SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE /3/ AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5
 CFR PART 2425.  THE AGENCY FILED AN OPPOSITION AND IN THAT OPPOSITION
 ALSO TOOK EXCEPTION TO A PORTION OF PART 4 OF THE ARBITRATOR'S AWARD.
 
    IN ITS EXCEPTION THE UNION CONTENDS THAT "(T)HE ARBITRATOR EXCEEDED
 HIS AUTHORITY UNDER THE AGREEMENT AS HIS AWARD DOES NOT DRAW ITS ESSENCE
 FROM THE AGREEMENT." IN SUPPORT OF THIS EXCEPTION THE UNION ARGUES THAT,
 BY GRANTING PRIORITY CONSIDERATION TO ALL FIVE ORIGINAL APPLICANTS, THE
 AWARD DOES NOT DRAW ITS ESSENCE FROM THE AGREEMENT IN THAT IT PROVIDES A
 REMEDY FOR TWO EMPLOYEES WHO WERE NEITHER GRIEVANTS IN THE ACTION NOR
 PARTIES TO THE PROCEEDING BEFORE THE ARBITRATOR.  THE UNION CITES TO
 NUMEROUS PROVISIONS OF THE AGREEMENT AND ASSERTS THAT UNDER THOSE
 PROVISIONS THE ARBITRATOR WAS PRECLUDED FROM AWARDING RELIEF TO
 EMPLOYEES WHO DID NOT FILE GRIEVANCES ON THEIR OWN BEHALF OR WHO DID NOT
 HAVE THE UNION FILE GRIEVANCES FOR THEM.  /4/ THE UNION ASSERTS THAT THE
 PRINCIPLE SET FORTH IN HOTEL EMPLOYEES UNION V. MICHELSON'S FOOD
 SERVICES, INC., 545 F.2D 1248(9TH CIR. 1976) SHOULD BE APPLIED BY THE
 AUTHORITY IN THIS CASE.  IN MICHELSON'S FOOD SERVICES THE COURT FOUND
 THAT AN ARBITRATOR HAD EXCEEDED HIS AUTHORITY BY PERMITTING AN EMPLOYEE
 WHO HAD FILED AN INDIVIDUAL GRIEVANCE TO TRANSFORM HIS GRIEVANCE INTO A
 GRIEVANCE ON BEHALF OF OTHER SIMILARLY SITUATED EMPLOYEES ON THE DAY OF
 THE ARBITRATION HEARING.
 
    THE UNION ALSO CONTENDS THAT THE AWARD GOES BEYOND THE ISSUE
 SUBMITTED TO THE ARBITRATOR SINCE THROUGHOUT THE GRIEVANCE PROCEDURE THE
 ONLY ISSUE IN DISPUTE CONCERNED THE GRIEVANTS' FAILURE TO RECEIVE PROPER
 CONSIDERATION.  FINALLY, THE UNION CONTENDS THAT THE ARBITRATOR HAD NO
 AUTHORITY TO FASHION A REMEDY OTHER THAN THAT EXPLICITLY PROVIDED FOR IN
 ARTICLE 7 OF THE AGREEMENT WHEN VIOLATIONS OR MERIT PROMOTION PROCEDURES
 OCCUR.  IN THE UNION'S VIEW SECTION 15(C)(2) OF ARTICLE 7, SUPRA NOTE 2,
 MANDATES RELIEF ONLY TO "AGGRIEVED EMPLOYEES," I.E., THOSE EMPLOYEES WHO
 ACTUALLY FILE GRIEVANCES.  THE UNION THUS CONCLUDES THAT THE ARBITRATOR
 EXCEEDED HIS AUTHORITY BY GRANTING THE EXCLUSIVE CONTRACTUAL REMEDY TO
 EMPLOYEES WHO MADE NO ATTEMPT TO HAVE THEIR PROBLEMS ADJUSTED OR
 RESOLVED UNDER THE CONTRACTUAL PROCEDURE.
 
    THE AUTHORITY WILL FIND AN AWARD DEFICIENT WHEN IT IS DEMONSTRATED IN
 THE EXCEPTION THAT THE ARBITRATOR EXCEEDED HIS OR HER AUTHORITY BY
 RENDERING AN AWARD IN DISREGARD OF A PLAIN AND SPECIFIC LIMITATION ON
 THAT AUTHORITY.  DEPARTMENT OF THE AIR FORCE, MCGUIRE AIR FORCE BASE AND
 LOCAL 1778, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 3 FLRA NO.
 38(1980).  THE AUTHORITY WILL ALSO FIND AN AWARD DEFICIENT WHEN IT IS
 DEMONSTRATED IN THE EXCEPTION THAT THE AWARD FAILS TO DRAW ITS ESSENCE
 FROM THE CONTRACT.  UNITED STATES ARMY MISSILE MATERIEL READINESS
 COMMAND (USAMIRCOM) AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
 LOCAL 1858, AFL-CIO, 2 FLRA NO.  60(1980).  HOWEVER, IN THIS CASE THE
 UNION HAS FAILED TO DEMONSTRATE THAT THE AWARD IS DEFICIENT ON EITHER OF
 THESE GROUNDS.
 
    THE ARBITRATOR STATED THE KEY ISSUE BEFORE HIM AS WHETHER THE
 GRIEVANTS' PROMOTION APPLICATIONS WERE "FAIRLY AND OBJECTIVELY PROCESSED
 AND ACTED UPON IN ACCORDANCE WITH THE PROVISIONS OF THE APPLICABLE
 AGREEMENT." IN RESPONSE TO THIS QUESTION, THE ARBITRATOR FOUND THAT THE
 ACTIVITY HAD VIOLATED THE AGREEMENT WITH RESPECT TO THE GRIEVANTS IN
 BOTH THE SEPTEMBER AND OCTOBER 1977 RANKINGS (SEE PARTS 1 AND 2 OF THE
 ARBITRATOR'S AWARD, PP. 2-3, SUPRA).  THEREAFTER, IN FASHIONING A
 REMEDY, THE ARBITRATOR CONSIDERED "AVAILABLE ALTERNATIVES," SPECIFICALLY
 REFERRED TO THE PROVISIONS OF ARTICLE 7, SECTION 15(C)(2) OF THE
 AGREEMENT, AND DETERMINED THAT HE "(COULD) NOT SIMPLY REQUIRE THAT THE
 THREE GRIEVANTS BE DEEMED TO HAVE BEEN ERRONEOUSLY OMITTED FROM THE BEST
 QUALIFIED LIST WITHOUT TAKING INTO ACCOUNT THAT TWO OTHER CANDIDATES
 WERE IN THE FIELD IN THE SEPTEMBER COMPETITION." ACCORDINGLY, HE
 DIRECTED THAT ALL FIVE OF THE ORIGINAL APPLICANTS BE PLACED ON A
 CERTIFICATE FOR THE NEXT APPROPRIATE VACANCY.
 
    THE UNION ARGUES THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY BY
 FAILING TO AWARD THE "EXPLICIT REMEDY" PROVIDED FOR IN ARTICLE 7,
 SECTION 15(C)(2) FOR VIOLATIONS OF MERIT PROMOTION ACTIONS.  THE UNION
 REFERS TO THE TERM "AGGRIEVED EMPLOYEE" USED IN THE BEGINNING OF SECTION
 15(C) AND MAINTAINS THAT THE REMEDY PROVIDED IN THAT SECTION IS
 AVAILABLE ONLY TO EMPLOYEES WHO HAVE FILED GRIEVANCES UTILIZING THE
 GRIEVANCE PROCEDURES AND NOT TO NONGRIEVANTS.  IN ITS OPPOSITION TO THE
 UNION'S EXCEPTION, THE AGENCY ARGUES PRECISELY THE OPPOSITE.  /5/
 ACCORDING TO THE AGENCY, SECTION 15(C)(2) SPECIFICALLY ADDRESSES
 EMPLOYEES OTHER THAN A GRIEVANT AND REQUIRES, AS WAS DONE BY THE
 ARBITRATOR, THAT WHEN THERE IS A DEFECT IN THE OVERALL PROMOTION
 PROCEDURES, ALL EMPLOYEES ERRONEOUSLY OMITTED FROM THE BEST QUALIFIED
 LIST ARE TO RECEIVE PRIORITY CONSIDERATION FOR THE NEXT VACANCY.  THUS
 THE PARTIES ARE IN DISAGREEMENT OVER THE MEANING OF A PARTICULAR
 CONTRACT PROVISION, A PROVISION WHICH WAS BEFORE THE ARBITRATOR AND
 DISCUSSED IN HIS OPINION.  THAT PROVISION, WHICH IS SUSCEPTIBLE OF
 VARYING INTERPRETATIONS, INCLUDING THE ONE ADVANCED BY THE AGENCY AND
 APPLIED BY THE ARBITRATOR, PROVIDES THE AUTHORITY IN THE CIRCUMSTANCES
 OF THIS PARTICULAR CASE FOR THE ARBITRATOR TO FASHION THE REMEDY HE DID
 DESPITE THE EXISTENCE OF PROVISIONS ELSEWHERE IN THE AGREEMENT WHICH
 MIGHT OTHERWISE SERVE AS A LIMITATION ON AN ARBITRATOR'S AUTHORITY TO
 EXTEND A GRIEVANCE TO COVER NONGRIEVANTS.  THE EXISTENCE OF THAT
 PROVISION FURTHER MAKES THIS CASE DISTINGUISHABLE FROM THE COURT'S
 DECISION IN MICHELSON'S FOOD SERVICES, SUPRA.  FOR THESE REASONS THE
 UNION HAS FAILED TO DEMONSTRATE THAT THE ARBITRATOR EXCEEDED HIS
 AUTHORITY OR THAT THE AWARD FAILS TO DRAW ITS ESSENCE FROM THE
 AGREEMENT.  THEREFORE, THE UNION'S EXCEPTION PROVIDES NO BASIS FOR
 FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF
 THE AUTHORITY'S RULES AND REGULATIONS.
 
    AS PREVIOUSLY INDICATED, THE AGENCY ALSO TOOK EXCEPTION TO A PORTION
 OF PART 4 OF THE ARBITRATOR'S AWARD.  HOWEVER, THAT EXCEPTION WAS
 SUBMITTED AS PART OF THE AGENCY'S OPPOSITION TO THE UNION'S EXCEPTION
 WHICH WAS FILED WITH THE AUTHORITY ON MAY 13, 1980.  SECTION 2425.1(B)
 OF THE AUTHORITY'S REGULATIONS, 5 CFR 2425.1(B)(1980), PROVIDES:
 
    THE TIME LIMIT FOR FILING AN EXCEPTION TO AN ARBITRATION AWARD IS
 THIRTY (30) DAYS
 
    BEGINNING ON THE DATE OF THE AWARD.
 
    THE SUBJECT ARBITRATION AWARD IS DATED MARCH 25, 1980.  THEREFORE,
 UNDER SECTION 2425.1(B) OF THE AUTHORITY'S REGULATIONS THE AGENCY'S
 EXCEPTION IS UNTIMELY.  IN THIS REGARD, THE AUTHORITY IS NOT EMPOWERED
 TO EXTEND OR WAIVE THE TIME LIMIT FOR FILING EXCEPTIONS TO ARBITRATORS'
 AWARDS.  BECAUSE THE AGENCY'S EXCEPTION WAS UNTIMELY FILED, AND APART
 FROM OTHER CONSIDERATIONS, THE AGENCY'S EXCEPTION IS DISMISSED.
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, WE HEREBY SUSTAIN THE ARBITRATOR'S
 AWARD.
 
    ISSUED, WASHINGTON, D.C., JUNE 18, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ A SUBSIDIARY ISSUE BEFORE THE ARBITRATOR WAS WHETHER ONE OF THE
 GRIEVANTS WAS ENTITLED TO A SPECIAL ACHIEVEMENT AWARD.  THE ARBITRATOR
 DENIED THE GRIEVANCE CONCERNING THAT ISSUE AND THAT PART OF HIS AWARD IS
 NOT BEFORE THE AUTHORITY IN THIS CASE.
 
    /2/ ONE OF THE PROVISIONS CONSIDERED BY THE ARBITRATOR WAS ARTICLE 7,
 SECTION 15(C)(2) WHICH PROVIDES:
 
    C.  IN THE ABSENCE OF AN ADJUSTMENT SATISFACTORY TO AN AGGRIEVED
 EMPLOYEE OF ANY MERIT
 
    PROMOTION ACTION INVOLVING AN EMPLOYEE OF THE UNIT WHICH IS
 DETERMINED TO HAVE BEEN IN
 
    VIOLATION OF THE PROVISIONS OF THIS AGREEMENT, AND WHICH HAS HAD THE
 EFFECT OF DENYING THE
 
    GRIEVANT PROPER CONSIDERATION, CORRECTIVE ACTION WILL BE TAKEN AS
 FOLLOWS:
 
   .          .          .          .
 
 
    2.  IF THE EMPLOYEE WAS ERRONEOUSLY OMITTED FROM THE BEST QUALIFIED
 LIST, HE/SHE SHALL
 
    RECEIVE PRIORITY CONSIDERATION (I.E., A CERTIFICATE WHICH CONTAINS
 HIS/HER NAME ALONE WILL BE
 
    SUBMITTED TO THE SELECTING OFFICIAL) FOR THE NEXT APPROPRIATE VACANCY
 FOR WHICH HE/SHE IS
 
    QUALIFIED.  IF MORE THAN ONE EMPLOYEE WERE ERRONEOUSLY OMITTED FROM
 THE BEST QUALIFIED LIST,
 
    THE NAMES OF ONLY THOSE EMPLOYEES WILL