29:0232(22)AR - NTEU, CHAPTER 49 VS TREASURY, IRS, INDIANAPOLIS DI



[ v29 p232 ]
29:0232(22)AR
The decision of the Authority follows:


29 FLRA NO. 22

INTERNAL REVENUE SERVICE,
INDIANAPOLIS DISTRICT

     Activity

     and

NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 49

     Union

Case No. 0-AR-1246

DECISION 1

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Alvin L. Goldman filed by the Activity 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

A grievance was filed and submitted to arbitration on the question of whether the Activity violated the grievant's rights when it reduced her work schedule to 8 hours per week, and, if so, what should be the remedy. In his background discussion, the Arbitrator explained that in 1977 after an extension of a temporary appointment, the grievant was converted to a contact representative (taxpayer service representative). Her appointment was stated as "career-seasonal WAE (When Actually Employed)." Before assuming the position, the grievant signed a statement that she understood that the employment was seasonal and required periods of full-time work, part-time work, and nonwork. During the next 4 years, she alternated periods of full-time work with periods of nonwork. Effective February 23, 1981, her tour of duty was reduced to 25 hours per week. Beginning in April 1981, she  again alternated between periods of full-time work and nonwork until January 18, 1982, when her tour of duty was again changed to 25 hours per week. During the next 2 years, she alternated among full-time work, the 25 hours per week part-time schedule, and nonwork. On June 24, 1984, her 25 hours per week schedule was reduced to 8 hours per week. It was this work schedule that resulted in the filing of the grievance.

The Arbitrator first incorporated and made a part of his decision his earlier ruling that the grievance had been timely filed. On the merits of the grievance, although he acknowledged that there was no dispute that the grievant was appointed for seasonal employment, the Arbitrator rejected the contention of the Activity that the grievant remained in seasonal employment. He determined that under Federal Personnel Manual (FPM) chapter 340, subchapter 2-4, the grievant's schedule beginning in February 1981 was no longer properly characterized as seasonal employment. He interpreted subchapter 2-4 as precluding during the season periods of both full-time and part-time work. Instead, the Arbitrator determined that the Activity's actions in changing her tour of duty in February 1981 to a part-time assignment of 25 hours per week and similar subsequent changes had "in fact ... convert(ed)" the grievant to a part-time employee under the Federal Employees Part-time Career Employment Act of 1978, 5 U.S.C. 3401-3408, and FPM chapter 340, subchapter 1 who was employed under a mixed tour arrangement for more than six pay periods per year as described in FPM chapter 340, subchapter 1-2. Accordingly, he ruled that her tour of duty could not be less than 16 hours per week without a determination by management that such a tour was necessary to carry out the agency mission. Because there was no evidence of such a determination, the Arbitrator held that the grievant's rights had been violated to the extent that the Activity reduced her tour of duty to less than 16 hours per week. As a remedy the Arbitrator awarded the grievant backpay for 15 workdays in the amount of the difference between what she was paid and what she would have been paid if she had worked a tour of duty of 16 hours per week.

III. First Exception

A. Contentions

The Activity contends that the award is deficient because the Arbitrator's determination that the grievance was timely is contrary to the mandatory time limits of the collective bargaining agreement.

B. Analysis and Conclusions

This exception provides no basis for finding the award deficient and is denied. See, for example, Headquarters, Fort Sam Houston, Department of the Army and Local 2154, American Federation of Government Employees, AFL - CIO, 15 FLRA 974 (1984) (exception merely disagreeing with the arbitrator's procedural arbitrability determination that the grievance was timely provides no basis for finding the award deficient).

A. Contentions

As one of its other exceptions, the Activity contends that the award is contrary to the Federal Employees Part-time Career Employment Act (the Act) and provisions of FPM chapter 340. The Activity maintains that the grievant was appointed to seasonal employment from which she was never converted and her work schedules were at all times consistent with the seasonal employment provisions of FPM chapter 340 and with her established conditions of employment. Consequently, the Activity argues that the Arbitrator misinterpreted the FPM by concluding that the grievant's employment was not properly characterized as seasonal. The Activity further argues that the award is contrary to the Act and FPM chapter 340 because the Arbitrator improperly concluded that the grievant had been converted to a permanent part-time position and was employed under a mixed tour and as a result improperly applied the requirement of a tour of duty of not less than 16 hours per week. The Union disputes the Activity's contentions that the award is contrary to law and the FPM.

B. Analysis and Conclusions

The Activity establishes that the award is deficient as alleged. We agree with the Activity that the award is deficient because the award has precluded the Activity's authorized employment of a seasonal employee, the grievant. We note that under 5 C.F.R. 340.402, agencies are specifically authorized to employ seasonal personnel in accordance with the procedures of FPM chapter 340. We agree with the Activity that the Arbitrator misinterpreted provisions of FPM chapter 340 in determining that the grievant's work schedules were not properly characterized as seasonal employment. Accordingly, we conclude that the award is deficient as contrary to 5 C.F.R. 340.402 and FPM chapter 340. We also agree with the Activity that the award is contrary to the Federal Employees Part-time Career  Employment Act and FPM chapter 340 by determining that the grievant had in fact been converted to a part-time permanent position and was required to have a tour of duty of no less than 16 hours per week.

FPM chapter 340 addresses four separate types of other than full-time career employment. Subchapter 1 pertains to part-time career employment and subchapter 2 pertains to seasonal employment. Subchapter 2-1 defines seasonal employment as "recurring periods of work lasting less than 12 months per year" and states that seasonal employees are placed in nonduty status and recalled to duty in accordance with conditions of employment established prior to the employee actually entering on duty. Subchapter 2-4 also specifically provides that "(a) seasonal employee may work on a full-time, part-time, or intermittent work schedule during the season if provision is made for these variations at the time of appointment."

As quoted by the Arbitrator, the grievant in this case signed a statement prior to her appointment as a seasonal employee establishing the following conditions of her employment:

I understand that employment as a Taxpayer Service employee will be seasonal, and will require periods of full-time work, part-time work, and non-work status, as well as periods of training.

As stated by the Arbitrator, there is no dispute in this case that the grievant was appointed for seasonal employment, was never appointed to a part-time permanent position under the Federal Employees Part-time Career Employment Act, and was never formally converted by the Activity after April 7, 1979 (the effective date of the Act) to a part-time permanent position. In these circumstances, the Arbitrator misinterpreted FPM chapter 340, subchapter 2 when he determined that the grievant's employment was not properly characterized as seasonal. To the contrary, the Activity's appointment and scheduling of the grievant was fully in accordance with FPM chapter 340 governing seasonal employment and fully in accordance with the specific conditions of employment established on appointment of the grievant as required by FPM chapter 340, subchapter 2-5. Accordingly, the Activity's employment of the grievant was as specifically authorized by 5 C.F.R. 340.402 and the award finding otherwise is contrary to that provision and FPM chapter 340. 

We also conclude that the Arbitrator misinterpreted and misapplied FPM chapter 340 when he determined that the Activity's actions in February 1981 of changing the grievant's tour of duty to a part-time schedule operated to convert the grievant to a part-time career employee employed under a mixed tour. Our examination of FPM chapter 340 finds no basis on which the Arbitrator could permissibly determine that a seasonal employee, who was being employed in accordance with subchapter 2, who had never been appointed as a part-time career employee, and who had never been formally converted to a part-time permanent position, was "in fact" converted when scheduled to work part-time and was required to have a tour of duty of no less than 16 hours per week.

We note, in particular, that subchapter 2 prescribes no such conversion or scheduling obligation with respect to seasonal employment. Subchapter 2 is in direct contrast to the provision of subchapter 4 pertaining to intermittent employment. Subchapter 4-1 specifically obligates an agency to change an intermittent employee's work schedule to part-time with all the corresponding benefits when an agency schedules an intermittent employee to work during each week for more than two consecutive pay periods. In our view, when an obligation to convert an other than full-time employee to a part-time schedule is prescribed by regulation in specified circumstances, it is inappropriate to infer such an obligation in other circumstances where the obligation is not prescribed.

In view of these provisions of FPM chapter 340, we conclude that the Arbitrator erroneously ruled that the grievant was in fact converted to a part-time position. The Arbitrator consequently was not authorized to award the grievant backpay based on the benefit of part-time career employment of a regularly scheduled tour of duty of not less than 16 hours per week. See U.S. Immigration and Naturalization Service and American Federation of Government Employees, Local 2805, 18 FLRA 317 (1985).

In INS, the arbitrator granted the grievants, who had been appointed as permanent part-time employees, the pay and benefits of full-time employees because the Activity scheduled them for full-time workweeks. The Authority found that the award of these benefits was not authorized. The Authority noted that Federal employees are only entitled to the pay and benefits of the positions to which they are appointed. In finding the award deficient, the Authority concluded that in view of the arbitrator's express acknowledgment that the grievants had been appointed as part-time employees, it was clear under Federal personnel law that the grievants were not entitled to receive, and the arbitrator was not authorized to award, the pay and benefits attendant to appointment as a full-time employee.

Similarly, in this case, the grievant was not entitled to, and the Arbitrator was not authorized to order that the employee receive, the benefit attendant to appointment as a part-time career employee of a regularly scheduled tour of duty of not less than 16 hours per week.

V. Decision

For these reasons, the Arbitrator's award of backpay is deficient and is set aside. 2

Issued, Washington, D.C., September 29, 1987.

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

Separate Opinion of Chairman Calhoun

I agree that the grievance was timely filed. I cannot agree, however, with my colleagues' conclusion that the Arbitrator's award is deficient under the criteria set forth in 5 U.S.C. 7122(a), and accordingly I would deny the exceptions and affirm the award.

As more fully set forth in what I believe to be an uncommonly well reasoned Opinion and Award, the Arbitrator made certain factual findings that led him to the conclusion that the grievant had, at some point in time previous to the filing of the grievance, been &constructively converted" to what Federal Personnel Manual (FPM) Chapter 340 designates as "mixed tour, part-time" employment. See Award at 8-9. Indeed in making this finding, the Arbitrator could have quoted Richard Cardinal Cushing who once observed that, "When I see a bird that walks like a duck, and swims like a duck, and quacks like a duck, I call that bird a duck.,

My review of the record satisfies me that the Arbitrator's findings are both supported by substantial evidence, and are consistent with a reasonable reading of the various FPM provisions at issue in the case. Thus I would not set aside the award unless it can be shown that the fundamental legal conclusion that a conversion of the terms of the grievant's appointment took place is itself directly contrary to any law, rule, or regulation. I do not believe any such showing has been made.

Like the Arbitrator in this case, courts have recognized in certain limited circumstances that it may be necessary to look beyond or behind a paper definition of a Federal employee's terms of employment to ascertain the reality of the conditions of such appointment. Stevens v. Tennessee Valley Authority, 867 F.2d 158 (6th Cir. 1982); see also National Treasury Employees Union v. Reagan, 663 F.2d 239 (D.C. Cir. 1981). The majority not only denies the Arbitrator that power in this case, but appears to further suggest that any time such a conclusion is drawn it violates law, rule or regulation. While my colleagues make a persuasive case for the proposition that the Arbitrator could have reached a different conclusion in interpreting the FPM provisions at issue in this case, in my view they do not show that a contrary conclusion was dictated by those provisions, or that the award is otherwise violative of those regulations. 

I also do not find the majority's reliance on U.S. Immigration and Naturalization Service and American Federation of Government Employees, Local 2805, 18 FLRA 317 (1985) to be persuasive. In that case, a hiring freeze was in existence at the agency at the time the award issued, and the Arbitrator specifically found that a retroactive appointment was not warranted. By contrast I can find no legal impediment to the Agency converting the grievant's appointment to reflect her part-time status. As noted by the Arbitrator, the Agency now contends that it should be able to profit, to the detriment of the grievant, from its failure over a period of time to perform an essentially ministerial act. This result is simply inequitable under the circumstances, and while I would very carefully review any arbitration award that finds a constructive conversion or appointment to have occurr