36:0278(36)AR - - Treasury, IRS, Salt Lake City, UT and NTEU Chapter 17 - - 1990 FLRAdec AR - - v36 p278
[ v36 p278 ]
The decision of the Authority follows:
36 FLRA No. 36
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
SALT LAKE CITY, UTAH
NATIONAL TREASURY EMPLOYEES UNION
July 12, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statemen`t of the Case
This matter is before the Authority on an exception to the award of Arbitrator Matthew W. Finkin. The Arbitrator determined that the grievance, which claimed that the Activity violated the Internal Revenue Manual in selecting an external candidate for a position over an internal applicant, was not grievable under the parties' collective bargaining agreement.
The Union filed an exception 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 exception on behalf of the Activity.
We conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the exception.
II. Background and Arbitrator's Award
The Activity posted a vacancy announcement for several openings for the position of revenue officer. Approximately 100 bargaining-unit employees applied for the vacancies. Twenty-eight internal applicants, including the grievant, were referred to the selecting official and were rated best qualified. The selecting official selected six internal applicants. The grievant was informed that she had not been selected. The Activity then selected several candidates from outside the Agency.
The Union filed a grievance on behalf of the grievant claiming that the Activity violated Internal Revenue Manual Policy Statement P-O-4 (P-O-4) by selecting external candidates over the grievant. The grievance was not resolved and was submitted to arbitration.
The Arbitrator stated the issues to be: (1) whether the grievance was timely filed; (2) whether the selection of an external candidate over an internal applicant, allegedly in violation of P-O-4, is grievable under the negotiated grievance procedure of the parties' collective bargaining agreement (NORD II); and (3) if the answer to issue (2) is yes, whether the Activity violated P-O-4 and, if so, what should be the remedy.(1)
On the issue of whether the selection of an external candidate over an internal applicant, allegedly in violation of P-O-4, is grievable under NORD II, the Arbitrator, after reviewing four arbitration awards that had considered the issue and reached different results, stated that the issue was a close and difficult one. The Arbitrator concluded that NORD II and its bargaining history should be read to provide that alleged violations of P-O-4 have been excluded from the scope of the parties' negotiated grievance procedure under NORD II.
In finding that the grievance was not grievable, the Arbitrator rejected the Union's argument that the bargaining history of NORD II did not evidence a waiver of its statutory right to enforce P-O-4 under the negotiated grievance procedure. In the Arbitrator's view, because section 7121(a)(2) of the Statute allows for the exclusion under a collective bargaining agreement of any matter from the application of the negotiated grievance procedure, the question was not whether the Union had waived a statutory right, but whether NORD II excluded grievances alleging violations of P-O-4.
Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
The Union contends that the award is contrary to law. The Union claims that it has a statutory right to grieve violations of P-O-4 and that the Arbitrator's finding that the Union waived its statutory right is contrary to law because the waiver is not clear and unmistakable. The Union states that although the Arbitrator characterized the issue as one of exclusion, rather than of waiver, "an exclusion is merely a waiver by another name." Union's Exception at 14. The Union asserts that in order for violations of P-O-4 to be excluded, an exclusion would have to be evidenced by an agreement to this effect or by clear and unmistakable evidence that the Union relinquished its right to grieve violations of P-O-4. The Union maintains that the Arbitrator pointed to no agreement to exclude violations of P-O-4 and the Arbitrator did not find, and on the record could not find, that the Union waived its right to grieve P-O-4 violations.
The Agency contends that the Union's arguments on waiver misconstrue the issue presented. The Agency argues that the cases cited by the Union on waiver do not apply. The Agency maintains that the issue decided by the Arbitrator was whether under NORD II the Union had a right to grieve alleged violations of P-O-4. The Agency asserts that based on his interpretation of NORD II, the Arbitrator concluded that the grievance was not grievable. The Agency claims that because the award constitutes the Arbitrator's interpretation of the collective bargaining agreement, the Union's exception provides no basis for finding the award deficient.
IV. Analysis and Conclusion
We conclude that the Union fails to establish that the Arbitrator's determination that grievances claiming a violation of P-O-4 in selecting an external candidate over an internal applicant are not grievable under NORD II is contrary to law.
In U.S. Department of the Treasury, Internal Revenue Service, Omaha District and National Treasury Employees Union, Chapter 3, 36 FLRA No. 35 (1990) (IRS, Omaha District), we were presented with a virtually identical case. The arbitrator in IRS, Omaha District determined that the grievance, which claimed that the activity violated P-O-4 in failing to select an internal applicant for a revenue officer position over an external candidate, was not grievable under NORD II. The Union filed an exception to the award contending that it was contrary to law and presenting virtually the same arguments in support of its exception that the Union has presented in this case. Based on U.S. Naval Air Station, Kingsville, Texas and American Federation of Government Employees, Local 1735, 35 FLRA 841 (1990) (U.S. Naval Air Station, Kingsville, Texas), we rejected the Union's arguments that the Union has a statutory right to grieve violations of P-O-4 and that in order for the arbitrator to have found such a matter excluded from the coverage of the negotiated grievance procedure of NORD II, the exclusion must be clear and unmistakable. We stated that the right to grieve a particular type of dispute that is grievable under the Statute must be determined by the scope of the grievance procedure agreed to by the parties in their collective bargaining agreement. With the arbitrator in IRS, Omaha District having determined that violations of P-O-4 are not grievable under NORD II, we concluded in IRS, Omaha District that no basis was provided for finding the award contrary to law.
The Arbitrator in this case similarly determined that violations of P-O-4 are not grievable under NORD II. We conclude, for the reasons stated in greater detail in IRS, Omaha District, that no basis is provided for finding the award contrary to law. Furthermore, to the extent that the Union has expanded its argument in this case to claim that in order for a matter to be excluded from the negotiated grievance procedure in accordance with section 7121(a)(2) of the Statute, there must be either a clear and unmistakable waiver or an express agreement and that there is no such express agreement contained in NORD II, we find that this argument provides no basis for finding the award contrary to law. We agree with the court in Bonner v. Merit Systems Protection Board, 781 F.2d 202 (Fed. Cir. 1986) (Bonner). In Bonner, the U.S. Court of Appeals for the Federal Circuit rejected the conclusion of the Merit Systems Protection
Board that in order for a matter to be excluded in accordance with the Statute from the coverage of a negotiated grievance procedure, "the collective bargaining agreement must 'specifically' exclude a matter." 781 F.2d at 205. Noting the importance of bargaining history and the principles of contract interpretation, the court held that the correct standard is whether the collective bargaining agreement can be interpreted to exclude a matter from the application of the negotiated grievance procedure. Id.
Accordingly, we reject the Union's argument that an exclusion from the negotiated grievance procedure requires either a finding of a clear and unmistakable waiver or an express agree