36:0227(27)AR - - Treasury, IRS, Indianapolis District and NTEU Chapter 49 - - 1990 FLRAdec AR - - v36 p227



[ v36 p227 ]
36:0227(27)AR
The decision of the Authority follows:


36 FLRA No. 27

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

INDIANAPOLIS DISTRICT

(Activity)

and

THE NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 49

(Union)

0-AR-1776

DECISION

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 claim to the contrary, the Arbitrator determined that the requirements of P-O-4 and Article 13, Section 2(C)(1) of NORD II were in specific conflict. Applying Article 2, Section 2 of NORD II, the Arbitrator determined that Section 2(C)(1) governed. Finding that the Activity had acted in accord with Section 2(C)(1), the Arbitrator denied the grievance. He in no manner ruled that claimed violations of any rule or regulation affecting conditions of employment are not grievances under the Statute. In this regard, we note that the Arbitrator did not conclude that collective bargaining agreement provisions always govern over agency regulations when they conflict.

By arguing that the Arbitrator's determination that P-O-4 and Article 13, Section 2(C)(1) were in specific conflict "is simply wrong" and does not rise to the level of a waiver, the Union fails to establish that the award is contrary to law. Union's Exceptions at 12. The exception is an attempt to relitigate this issue before the Authority and is simply disagreement with the Arbitrator's interpretation and application of the parties' collective bargaining agreement. The exception provides no basis for finding the award deficient. See, for example, American Federation of Government Employees, Local 3529 and U.S. Department of Defense, Defense Contract Audit Agency, 35 FLRA No. 122 (1990).

Accordingly, we will deny the exception.

IV. Second Exception

A. Positions of the Parties

The Union contends that the Arbitrator's determination that P-O-4 was not violated because it was qualified by the exception stated in IRM § 0335.233(2) is contrary to law. The Union claims again that this is essentially a finding by the Arbitrator of a waiver of the Union's statutory right to grieve P-O-4. The Union argues again that there is no clear and unmistakable waiver and that, consequently, this finding is deficient as a matter of law. The Union asserts that the Arbitrator erred in applying principles of contract construction in interpreting the unilaterally promulgated IRM and erroneously concluded that IRM § 0335.233(2) qualified P-O-4 and was an exception to it.

The Agency again contends that the Union has misconstrued the award and fails to demonstrate that it is contrary to law.

B. Analysis and Conclusions

We conclude that the Union's exception provides no basis for finding the award deficient.

In our view, the Arbitrator's determination that P-O-4 was qualified by the exception stated in IRM § 0335.233(2) was a separate and independent ground for the Arbitrator's denial of the grievance. We have concluded that the Arbitrator's denial of the grievance based on the precedence of NORD II over P-O-4 is not deficient. For this reason alone, the Union's exception disputing the Arbitrator's separate and independent ground for denying the grievance provides no basis for finding the award deficient.

However, other reasons warrant denying this exception, as well. The Union again misconstrues the award as finding a waiver of what the Union claims to be its statutory right to grieve P-O-4 and, consequently, fails to establish that