30:1097(119)AR - NTEU and IRS -- 1988 FLRAdec AR



[ v30 p1097 ]
30:1097(119)AR
The decision of the Authority follows:


 30 FLRA NO. 119
 30 FLRA 1097

28 JAN 1988


NATIONAL TREASURY EMPLOYEES UNION

                    Union

      and

INTERNAL REVENUE SERVICE

                    Agency

Case No. O-AR-1341

DECISION

I. Statement of the Case

     This matter is before the Authority on exceptions to the
interest arbitration award of Arbitrator Jerome H. Ross. As part
of his award the Arbitrator imposed certain provisions concerning
employee reassignments. The Union has filed exceptions to this
portion of the award under section 7122 (a) of the Federal
Service Labor - Management Relations Statute (the Statute) and
part 2425 of the Authority's Regulations. The Agency filed an
opposition.

     For the reasons discussed below, we conclude that the award
is not inconsistent with the Statute and that the Arbitrator did
not exceed his authority when he imposed the provisions
concerning reassignments. Accordingly, we deny the Union's
exceptions.

II. Background and Arbitrator's Award

     The dispute concerns an impasse reached by the parties
during reopener negotiations covering four articles of the
parties' national collective bargaining agreements. The Federal
Service Impasses Panel (the Panel) approved the parties' joint
request for binding mediation/arbitration.

     The Arbitrator issued his award resolving the matters at
impasse after the parties were unable to reach agreement at his
mediation/arbitration hearing. As relevant to the Union's
exceptions, the Arbitrator imposed the following provisions as
Article 15, Section 5 of their agreements concerning employee
reassignments:

     With respect to all other reassignments, the following
procedures shall apply:

     1. The employer shall designate the employee(s)to be
reassigned.

     2. The employer shall give the affected employee(s) five
work days notice.

     3. The parties may locally bargain the impact of such
reassignments consistent with law.

III. Exceptions

A. Positions of the Parties

     The Union contends that the award is deficient because the
provisions of Article 15, Section 5 are outside the Union's duty
to bargain. The Union maintains that by imposing these
provisions, the Arbitrator waived the Union's rights under the
Statute to bargain on the implementation of the reassignment of
employees. The Union acknowledges that the assignment of
employees is a mandatory subject of bargaining. The Union argues,
however, that the waiver of its statutory rights is outside the
duty to bargain. Consequently, the Union claims that the award is
deficient because: (1) the Agency may not insist on bargaining to
impasse over proposals which are outside the Union's duty to
bargain; (2) the Arbitrator lacked authority to impose provisions
which are outside its duty to bargain; and (3) the Arbitrator
lacked jurisdiction to decide whether the provisions were within
the Union's duty to bargain.

     The Agency argues that the provisions imposed by the
Arbitrator concerned employee reassignments, not a waiver of the
Union's statutory rights. The Agency claims that the Arbitrator
properly resolved the parties' impasse over the procedures to be
applied for the reassignment of employees and that the exceptions
should be denied because the Union merely disagrees with the
decision on the merits. The Agency maintains that the Union
misconstrues the provisions as a waiver of statutory rights
rather than the ordinary operation of a contract bar to any
subsequent Union proposals which are inconsistent with the
procedures in the provision. In the Agency's view, the provisions
imposed by the Arbitrator simply preclude either party during the
life of the agreements from acting on employee reassignments
contrary to the terms of the agreements. To the Agency, this
preclusion does not constitute a waiver. 
B. Analysis and Conclusion

     We conclude that the union's position in this case is
without merit.

     The provisions imposed by the Arbitrator relate to
reassignments of bargaining-unit employees and concern the
conditions of employment of unit employees. The subject of the
provisions constitutes a mandatory subject of bargaining for both
parties. The Union has misconstrued the provisions as
constituting a waiver of its statutory rights to bargain over the
implementation of future employee reassignments.

     During the term of the collective bargaining agreements,
both parties are obliga