36:0227(27)AR - - Treasury, IRS, Indianapolis District and NTEU Chapter 49 - - 1990 FLRAdec AR - - v36 p227
[ v36 p227 ]
The decision of the Authority follows:
36 FLRA No. 27
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
THE NATIONAL TREASURY EMPLOYEES UNION
June 29, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Sinclair Kossoff. A grievance was filed alleging that a number of unit employees failed to receive proper consideration for vacancies for the position of revenue officer. The Arbitrator denied the grievance.
The Union filed exceptions to the award under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Internal Revenue Service (the Agency) filed an opposition to the exceptions on behalf of the Activity.
We conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
The Activity posted a vacancy announcement for several openings for the position of revenue officer. Forty-nine bargaining-unit employees applied for the vacancies. The Activity determined that all were eligible for the positions and placed their names on a roster of eligible employees. The Activity selected fourteen of these bargaining-unit applicants for revenue officer positions. The Activity then selected 26 candidates from outside the Agency for revenue officer positions: 19 from Office of Personnel Management (OPM) certificates and 7 from the outstanding scholar program.
The Union filed a grievance on behalf of a number of unit employees who had been on the roster of eligibles but were not selected, alleging that the grievants failed to receive proper consideration for the revenue officer positions. The Union claimed that the Activity's actions violated the parties' collective bargaining agreement (NORD II) and Internal Revenue Manual Policy Statement P-0-4 (P-0-4). The grievance was not resolved and was submitted to arbitration.
The parties agreed to have the Arbitrator frame the issues to be resolved. The Arbitrator stated the issues to be whether the Activity was required to apply P-0-4 in its selections for the revenue officer positions and whether any of the specified external candidates were improperly selected.(*)
The Union contended before the Arbitrator that P-O-4 requires that selections be made from within the Agency when internal applicants are as well qualified as external candidates and that the requirement was enforceable in arbitration. The Union also contended that there was no specific conflict between P-O-4 and NORD II that would preclude the Arbitrator from providing a remedy for a violation of P-O-4.
The Activity contended before the Arbitrator that NORD II provides that when provisions of the Internal Revenue Manual (IRM) are in conflict with provisions of the agreement, the NORD II provisions govern. The Activity argued that Articles 3 and 13 of NORD II conflict with P-O-4 and that NORD II takes precedence over P-O-4. The Activity also argued that its actions were supported by IRM § 0335.233(2).
The Arbitrator ruled that the Activity was not required to apply P-O-4 in its selections for the revenue officer positions in dispute. The Arbitrator quoted Article 2, Section 2 of NORD II, as follows: "To the extent that provisions of the Internal Revenue Manual are in specific conflict with this Agreement the provisions of this Agreement will govern." Arbitrator's Award at 18. Applying this provision of NORD II, the Arbitrator determined that P-O-4 was not enforceable in this case. Rejecting the Union's claim to the contrary, the Arbitrator concluded that P-O-4 was in specific conflict with Article 13, Section 2(C)(1) of NORD II and that Section 2(C)(1) governed. The Arbitrator found that under Section 2(C)(1), the Activity "may use any other alternative source to fill the vacancies" and that therefore it was not required to grant the unit applicants the preference provided by P-O-4.
In addition, the Arbitrator ruled that the IRM did not support the Union's position in this case. The Arbitrator concluded that the Activity's actions did not violate P-O-4 because P-O-4 was qualified by the exception stated in IRM § 0335.233(2), which entitled the selecting official to choose candidates referred from an OPM register.
Accordingly, the Arbitrator denied the grievance.
III. First Exception
A. Positions of the Parties
The Union contends that the Arbitrator's determination that P-O-4 was not enforceable because it is in specific conflict with NORD II is contrary to law. The Union claims that the Arbitrator essentially found that the Union waived its statutory right to grieve P-O-4 and the Union argues that this finding is deficient as a matter of law. The Union concedes that the Arbitrator did not characterize his finding as a waiver. However, the Union argues that the Arbitrator's determination that P-O-4 was in specific conflict with NORD II and that, consequently, the Union was prohibited from grieving violations of P-O-4 is "a waiver by another name." Union's Exceptions at 15. The Union asserts that this finding is deficient as a matter of law because there is no clear and unmistakable waiver. The Union claims that the Arbitrator's conclusion that P-O-4 and Article 13, Section 2(C)(1) of NORD II are in specific conflict is simply wrong. The Union asserts that, therefore, the Arbitrator's reasoning cannot rise to the level of a waiver by the Union of its broad-scope grievance rights.
The Agency contends that the Union fails to demonstrate that the award is contrary to law. The Agency maintains that the Union has misconstrued the award and that its exception constitutes mere disagreement with the award.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the Arbitrator's determination that P-O-4 was not enforceable is contrary to law.
We agree with the Agency that the Union has misconstrued the award. As the Union concedes, the Arbitrator did not characterize his determination as a waiver of the Union's "statutory right" to grieve P-O-4. We reject the Union's claim that the award finds "a waiver by another name." Union's Exceptions at 15. In our view, the Arbitrator resolved the issue of the governing requirement in the consideration of internal applicants and external candidates on the merits. He did not find the grievance to be nongrievable. Rejecting the Union's cl