24:0288(35)AR - IRS, Cincinnati District Office and NTEU Chapter 9 -- 1986 FLRAdec AR



[ v24 p288 ]
24:0288(35)AR
The decision of the Authority follows:


 24 FLRA No. 35
 
 INTERNAL REVENUE SERVICE 
 CINCINNATI DISTRICT OFFICE
 Activity
 
 and
 
 THE NATIONAL TREASURY EMPLOYEES 
 UNION, CHAPTER 9
 Union
 
                                            Case No. 0-AR-1146
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Patrick A. McDonald filed by the Agency under section 7122(a)
 of the Federal Service Labor-Management Relations Statute (the Statute)
 and part 2425 of the Authority's Rules and Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievance in this matter arose when a number of seasonal
 employees were furloughed because of a reduction in the number of hours
 allocated to the Taxpayer Service Division.  According to the
 Arbitrator, 32 of the employees were notified by the Activity on
 February 11, 1985 that they would be furloughed at the close of business
 on February 12;  one employee was notified on February 12 that she would
 be furloughed at close of business that day.  Sixteen others were
 notified on February 25 that they would be furloughed at the close of
 business on February 26 and one employee was notified on February 26
 that she would be furloughed that same day.  A group grievance was
 filed, contending that the Activity's failure to provide five days
 advance notice of the furloughs violated Article 25, Section 1H of the
 collective bargaining agreement, which provides:  "An employee will,
 whenever possible, receive five days notice of furlough." The matter was
 submitted to arbitration.
 
    The parties stipulated to the Arbitrator that the furloughed
 employees were "ready, willing and able to work for four days following
 their furlough." The Arbitrator found that the Activity knew before the
 furloughs were announced that the number of hours available was reduced
 and that furloughs would be necessary.  He ruled that the Activity could
 have given five days notification and that by not doing so it violated
 Article 25, Section 1H.  He rejected the Activity's contention that the
 grievance infringed on its rights to determine its mission, budget, and
 number of employees.  As his award he sustained the grievance and ruled
 that the Activity's violation of the notice requirement of the agreement
 "resulted in the denial of all or part of the pay and allowances
 otherwise due to the grievants for four days following February 12, 1985
 and February 26, 1985." He ordered the Activity to reimburse the
 grievants at their straight-time rate for the four days following their
 notifications of furlough.
 
                           III.  FIRST EXCEPTION
 
    A.  Contentions
 
    The Agency contends the award is contrary to the Back Pay Act, 5
 U.S.C. Section 5596, because the Arbitrator failed to make the requisite
 findings to support the award of backpay.  Specifically the Agency
 contends that the Activity's failure to give five days notice to the
 grievants did not constitute an unwarranted or unjustified personnel
 action because the agreement provision violated was discretionary, not
 mandatory.  Further, the Agency contends that the Arbitrator did not
 make the required finding that the violation directly resulted in the
 reduction or loss of pay to the grievants and that he failed to address
 evidence showing that the grievants would not have worked beyond the
 furlough dates.
 
    B.  Analysis and Conclusion
 
    We find that this exception fails to establish that the award is
 deficient as alleged.  In order for an award of backpay to be authorized
 under the Back Pay Act, the arbitrator must find that an agency
 personnel action was unjustified or unwarranted, that the personnel
 action directly resulted in the withdrawal or reduction of the
 grievant's pay, allowances or differentials, and that but for the
 action, the grievant would not have suffered a withdrawal or reduction
 of pay, allowances or differentials.  American Federation of Government
 Employees, Local 1760 and Social Security Administration, Northeastern
 Program Service Center, 22 FLRA No. 19 (1986).
 
    In this case, the Arbitrator found that the Activity violated the
 agreement provision and that it was possible for the Activity to give
 five days notice under the circumstances presented.  Contrary to the
 Agency's contention, the Arbitrator's interpretation of the agreement as
 imposing a mandatory requirement for five days notice when possible
 constitutes a finding by an appropriate authority under the Back Pay
 Act.  See National Labor Relations Board Union, Local 19 and Office of
 the General Counsel, National Labor Relations Board, 7 FLRA 21 (1981).
 Therefore, the Activity's action furloughing the grievants without the
 required notice was an unjustified or unwarranted personnel action under
 the Back Pay Act.
 
    As to the second part of the Agency's exception, we find that the
 Arbitrator made the required finding under the Back Pay Act that the
 Activity's failure to give the grievants five days notice directly
 resulted in their not working for the four days following furlough.  He
 specifically found that the Activity knew sufficiently in advance that
 furloughs would be required, he noted the parties' stipulation that the
 grievants were available to work, and he found that the Activity had
 sufficient hours in its allocation to employ them during the notice
 period.  The Agency fails to show that the Arbitrator erred in finding
 that the grievants otherwise would have worked for four days following
 notice or that he ignored evidence pertaining to that.  Its exception
 constitutes nothing more than disagreement with the Arbitrator's finding
 of fact and with his reasoning and conclusions.  This disagreement
 provides no basis for finding an award deficient.  Department of the Air
 Force, Scott Air Force Base and National Association of Government
 Employees, Local No. R7-23, 4 FLRA 712 (1980).
 
                           IV.  SECOND EXCEPTION
 
    A.  Contentions
 
    The Agency contends that the award is contrary to section
 7106(a)(2)(A) of the Statute because it restricts its right to layoff
 employees and imposes a mandatory notice requirement.  The Agency
 maintains that the effect of the award is to nullify the furloughs which
 were implemented.
 
    B.  Analysis and Conclusion
 
    The Agency's second exception fails to show that the award violates
 section 7106(a)(2)(A) of the Statute.  Contrary to the Agency's
 contentions, the award in no way prevents the Activity from furloughing
 or laying off employees.  Rather, the award only enforces the Activity's
 contractual obligation to give employees notice of furlough "whenever
 possible." The Authority has consistently held that the rights reserved
 to management under section 7106(a) of the Statute are subject to
 procedures negotiated under section 7106(b)(2) and such procedures are
 enforceable by grievance and arbitration.  National Treasury Employees
 Union and U.S. Customs Service, 18 FLRA No. 94 (1985).  The Authority
 has found that a bargaining proposal which provided for a 30 day notice
 of reduction in force was a negotiable procedure which would not prevent
 the agency from laying off and/or retaining employees.  National
 Federation of Federal Employees, Local 108 and U.S. Department of
 Agriculture, Farmers Home Administration, 16 FLRA 807 (1984) (Proposal
 2).  In this case, the agreement provision for a five day notice of
 furlough whenever possible also constitutes a procedure which was
 properly enforceable by the Arbitrator.  Consequently, the award is not
 contrary to section 7106(a)(2) of the Statute.
 
                               V.  DECISION
 
    Accordingly, for the above reasons, the Agency's exceptions are
 denied.
 
    Issued, Washington, D.C., December 4, 1986.
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       F