39:1250(108)AR - - Treasury, IRS, Cincinnati, OH and NTEU Chapter 9 - - 1991 FLRAdec AR - - v39 p1250



[ v39 p1250 ]
39:1250(108)AR
The decision of the Authority follows:


39 FLRA No. 108

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

CINCINNATI, OHIO

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 9

(Union)

0-AR-1900

DECISION

March 15, 1991

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 Edward P. Archer filed by the Agency 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 Union filed an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance alleging that the Agency had violated the parties' collective bargaining agreement when it noncompetitively reassigned a supervisor to a bargaining unit position for which qualified bargaining unit employees had competed. As his award, the Arbitrator directed the Agency to adhere to the parties' contract and the agreed-upon procedures for placing returning supervisors into bargaining unit positions without competition and ordered the Agency to provide the grievant with priority consideration for the next appropriate vacancy.

For the following reasons, we will deny the Agency's exceptions.

II. Background and Arbitrator's Award

The circumstances giving rise to the grievance were stipulated by the parties at the arbitration hearing. The grievant was among three bargaining unit employees who had applied and competed for a lead clerk/typist, GS 322-5 position that had been announced by the Agency on January 20, 1989. The applicants were rated and ranked. All three applicants were placed on the best-qualified list; the grievant was ranked highest. On February 23, 1989, after the closing date of the vacancy announcement, the selecting official received a request by the former incumbent of the posted position, who had been promoted to a supervisory position and had not yet completed her probationary period as a supervisor, that she be returned to a GS-5 position. On February 24, 1989, the selecting official reviewed the best-qualified list but did not select from the list. Later that same day, the selecting official noncompetitively reassigned the former incumbent from her non-bargaining unit position to the vacant bargaining unit position.

A grievance was filed alleging that the Agency had violated the competitive promotion procedures set forth in Article 13 of the parties' collective bargaining agreement.(1) The grievance was not resolved and was submitted to arbitration.

The Arbitrator stated that there was no dispute that the job for which the grievant had competed and which was given to the former incumbent without competition was a "budgeted position" and at the time the former incumbent was given the job she was not in the bargaining unit.(2) Accordingly, the Arbitrator concluded that under Article 13, Section 2B.7 of the parties' agreement, the promotion procedures of Article 13 were applicable unless they were "overridden by statute or this job was an exception under either Article 13, Section 2A or a binding past practice or unless the Agency's actions qualified as the use of 'an alternative source' under Article 13, Section 2C.1." Award at 4.

Before the Arbitrator, the Union took the position that the exception contained in Article 13, Section 2A.8 was not applicable and that Section 2C.1 of that article did not permit the Agency to place the former incumbent in the disputed job without the competition provided for in Article 13. The Union also argued that there was no statute that was inconsistent with or took precedence over the contractual requirements of Article 13.

The Agency contended before the Arbitrator that, based upon bargaining history and past practice, it was contractually permitted to place the former incumbent in the position without following the procedures otherwise required under Article 13, and that its placement of the non-bargaining unit employee into the job was, in effect, a use of an "alternative source" under Article 13, Section 2C.1. Award at 20, 25. Alternatively, the Agency argued that its action was taken pursuant to statutory authority under 5 U.S.C. º 3321 and the Federal Personnel Manual which took precedence over the requirements of Article 13.(3)

The Arbitrator considered and analyzed testimony from both parties regarding the bargaining history of Article 13, the past practice under Article 13, and the meaning and applicability of 5 U.S.C. º 3321. With respect to bargaining history, the Arbitrator first noted that Article 13, Section 2B.7 explicitly provides that the competition procedures of Article 13 apply to filling bargaining unit positions with non-bargaining unit applicants and that the selectee was a non-bargaining unit applicant seeking a position in the bargaining unit. The Arbitrator concluded that Section 2A.8, which excludes from Article 13 the filling of non-budgeted, bargaining unit positions with management officials, had no application to the grievance because the position in question was a budgeted position. Thus, the Arbitrator found that the "clear meaning of the language of Article 13 supports the Union's position that Article 13 was applicable to the filling of the position in question." Id. at 22. The Arbitrator found no merit in the Agency's contention that the bargaining history supported the Agency's action in reassigning the selectee without competition. Rather, the Arbitrator concluded that "the preponderance of the evidence in the record supports the conclusion that . . . the parties agreed to exactly what they stated in their agreement. The competition requirements of Article 13 were to apply to the filling of bargaining unit positions with non-bargaining unit applicants (Section [2]B.7) with the exception of the filling of non-budgeted bargaining unit positions with managers or management officials (Section [2]A.8)." Id. at 24.

In examining and analyzing the Agency's contention regarding past practice, the Arbitrator noted that the evidence provided as to past practice under Article 13 did not address the issue before him. Rather, it related to the Agency's ability to place "managers into non-budgeted unit positions with the right thereafter to non-competitively place such managers into unit positions which become vacant subsequent to the manager's placement into the non-budgeted position." Id. (emphasis in original). The Arbitrator found that the evidence provided "no support for [the Agency's] understanding that managers could be moved without competition into unit positions of the grade they had been in when promoted into management." The Arbitrator continued "it is, of course, that understanding that the Agency is relying upon as support for its action in this case." Id. at 25.

The Arbitrator also rejected the Agency's contention that Article 13, Section 2C.1 permitted the selection of the non-bargaining unit applicant because she was an "alternative source" that the Agency was authorized to use after it had not selected any of the candidates on the best-qualified list. The Arbitrator noted that the Agency had the right not to select any of the competing candidates and to turn to alternative sources. However, the Arbitrator concluded that Article 13, Section 2C.1 must be read together with Sections 2B.7 and 2A.8 of that same article and that under the latter two sections the Agency had "agreed that it could not place managers into bargaining unit positions without competition except by first putting them into non-budgeted positions and thereafter . . . placing into them unit positions which subsequently became vacant." Id. at 25-26. The Arbitrator found that Sections 2B.7 and 2A.8 would be rendered "meaningless, [if] the Agency could bypass the restrictions of 2A.8 by merely calling its desired supervisory candidate an 'alternative source' under 2C.1." Id. at 26. Accordingly, the Arbitrator concluded that "Section 2C.1 permits alternative sources to be used for filling vacancies but not alternative sources which are expressly disallowed under Sections 2B and 2A of Article 13." Id. The Arbitrator stated that he was "persuaded that the Agency agreed not to fill unit positions with supervisors returning to the unit without competition except by the procedure agreed to under Article 13, Section A.8. That was not done in this case and cannot be bypassed under Article 13, Section C.1." Id. at 27.

Finally, the Arbitrator found no merit in the Agency's contention that the action it took was mandated by 5 U.S.C. º 3321 and the Federal Personnel Manual (FPM) chapter 315, subchapter 9. The Arbitrator noted that both 5 U.S.C. º 3321 and the cited portion of the FPM "provide that a supervisor who does not satisfactorily complete the probationary period shall be returned to a position of no lower grade and pay than the position from which the individual was promoted." Id. at 28 (emphasis in original). The Arbitrator concluded that under Article 13, Section 2A.8 the Agency had the authority to place the selectee into a non-budgeted unit position and that was "all that she was entitled to under either 5 U.S.C. º 3321 or the Federal Personnel Manual." Id. The Arbitrator found that 5 U.S.C. º 3321 ensured the affected employee's re-entry into a position in the bargaining unit, but not necessarily precisely the same job the employee had occupied prior to promotion. The Arbitrator found further that Article 13 did not conflict with 5 U.S.C. º 3321 because Article 13 set forth procedures which management would observe in implementing 5 U.S.C. 3321 and did not preclude an affected employee's return to a position comparable to the job he or she held prior to being promoted.

Based upon the foregoing, the Arbitrator concluded that the Agency violated the collective bargaining agreement by placing the selectee in the disputed position without her participation in competition. As his award, the Arbitrator directed the Agency to adhere to Article 13 of the parties' collective bargaining agreement and the agreed-upon procedures in placing returning supervisors into bargaining unit jobs and ordered the Agency to provide the grievant with priority consideration for the next appropriate vacancy.

III. Positions of the Parties

A. The Agency's Exceptions

The Agency contends that the Arbitrator's award is deficient because it is contrary to law and regulation. Specifically, the Agency argues that the award is contrary to 5 U.S.C. º 3321 and denies the Agency the authority to exercise its rights under section 7106(a) of the Statute.

With respect to 5 U.S.C. º 3321, the Agency maintains that its "right to return a supervisor to a bargaining unit position at no higher grade than held when the employee left the bargaining unit is a statutory duty and is not subject to negotiated procedures." Memorandum in Support of Exceptions at 4. The Agency argues that the FPM provides that supervisors who do not complete their probationary periods are entitled to be placed in a position of no lower grade and pay than the one the employee left to accept the supervisory position and that "[t]his guidance in conjunction with the mandatory 'shall' of [5 U.S.C. º 3321] must control . . . . The OPM regulations do not provide for any procedural roadblock to the former supervisor's entitlement to a bargaining unit position. The nondiscretionary language of [5 U.S.C. º 3321] and the regulations cogently illustrates the futility of a negotiated procedure: [5 U.S.C. º 3321] and the regulations subsume procedures in their wake." Id. at 5. The Agency, therefore, asserts that no limitation may be imposed on its duty to comply with 5 U.S.C. º 3321.

The Agency maintains that the award conflicts with the Statute because it interferes with its right to select under section 7106(a)(2)(C) by "preventing the selecting official from going beyond the candidates referred to him on the best qualified list of the internal candidates." Id. at 9. The Agency argues that "the Arbitrator impermissibly limited the source from which the Agency could make selections," id. at 10, and "limited the [A]gency from making a selection from an appropriate source by preventing the [A]gency from reassigning a probationary manager to her former position," id. at 11.

B. The Union's Opposition

The Union maintains that the Arbitrator's decision is well-reasoned and draws its essence from the parties' collective bargaining agreement. The Union asserts that the Agency, in its exceptions, is merely disagreeing with the Arbitrator's interpretation and application of provisions of the agreement and that such disagreement provides no basis for finding the award deficient.

The Union argues that the Agency has misunderstood the Arbitrator's award and that the award does not require the Agency to select from internal candidates or impermissibly limit the Agency's ability to select from any other sources. The Union contends that the award enforces the competitive promotion procedures set forth in the collective bargaining agreement and does not restrict the Agency's ability to fill positions from any source. The Union argues that the award merely requires the Agency to use the competitive procedures set forth in Article 13 of the parties' agreement when selecting supervisors for budgeted, bargaining unit positions.

The Union also contends that the award is not inconsistent with 5 U.S.C. º 3321. The Union argues that 5 U.S.C. º 3321 does not require the Agency to return a probationary supervisor to any particular position. The Union notes that the Arbitrator correctly stated that the collective bargaining agreement provides that the Agency can noncompetitively assign a supervisor to any non-budgeted position. Therefore, the Union maintains that the Agency can comply both with the Arbitrator's award and 5 U.S.C. º 3321. Moreover, the Union argues that the Agency has not established that the selectee in this case was qualified for the protections of 5 U.S.C. º 3321 because the selectee voluntarily requested a reassignment to a lower grade and the Agency had not established that she did not "satisfactorily complete" her probationary period as required by 5 U.S.C. º 3321.

IV. Analysis and Conclusions

A. The Award Does Not Conflict with 5 U.S.C. º 3321

We reject the Agency's claim that the award is deficient because, contrary to the determination of the Arbitrator, the selectee in this case was entitled to the disputed position under 5 U.S.C. º 3321 and implementing regulations. We find in agreement with the Union that because the selectee voluntarily requested reassignment to a lower grade, the Agency has not established that she was entitled to reassignment under section 3321.

Under section 3321(b)(2), an individual who does not "satisfactorily complete" the probationary period served as a supervisor or manager is entitled to be returned to a position of no lower grade and pay than the position from which the individual was promoted to supervisor or manager. With respect to the failure to complete the probationary period, 5 C.F.R. º 315.907(a) provides that the supervisor or manager is entitled to reassignment under section 3321(b)(2) when the individual does not satisfactorily complete the probationary period "for reasons of supervisory or managerial performance." FPM chapter 315, subchapter 9-6(b) similarly provides that a supervisor or manager is entitled to reassignment under section 3221(b)(2) "only for reasons related to the employee's performance as a supervisor or manager."

In this case, the Agency has failed to demonstrate that the selectee did not satisfactorily complete the probationary period of her supervisory position "for reasons directly related to the employee's performance as a supervisor." Consequently, we conclude that the Agency fails to establish that the selectee was entitled to reassignment under section 3321(b)(2). Accordingly, we find no basis for finding the award deficient, and we will deny this exception. In denying the exception, we find it unnecessary for us to address the Arbitrator's different reasoning in correctly concluding that the action the Agency took was not mandated by section 3321.

B. The Award Does Not Abrogate Management's Right to Select Under Section 7106(a)(2)(C) of the Statute

In Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (U.S. Customs Service), we reexamined our approach to cases in which an agency contends that an arbitrator's award, enforcing a provision of the parties' collective bargaining agreement, is contrary to management's rights under section 7106(a) of the Statute. We held that when an agency makes such a contention we will examine, as appropriate, the provision enforced by the arbitrator to determine: (1) if it constitutes an arrangement for employees adversely affected by the exercise of management's rights; and (2) if, as interpreted by the arbitrator, it abrogates the exercise of a management right. We explained that if it is evident that the provision constitutes an arrangement and, as interpreted by the arbitrator, does not abrogate management's rights, the provision is within the range of matters that can be bargained under the Statute. We also held that if the arbitrator's interpretation does result in an abrogation of management's rights under section 7106(a), the award will be found deficient as contrary to law, but the contractual provision, susceptible to a different and sustainable interpretation by a different arbitrator, will not be affected.

We also noted in U.S. Customs Service, that an arbitrator's award is deficient if it fails to draw its essence from the parties' agreement. We encouraged the parties to set forth plainly and precisely the arrangements to which they have agreed for employees adversely affected by the exercise of management's rights. We held that when a party establishes that the arbitrator's enforcement of the agreement does not represent a plausible interpretation of the agreement, we will find the award deficient. In such a circumstance, however, the award will be found deficient because it fails to draw its essence from the agreement, not because it conflicts with management's rights. Id. at 317-18.

Applying that approach in this case, we find that the Agency has not established that the award is contrary to management's right to select under section 7106(a)(2)(C) of the Statute. Instead, the Arbitrator has enforced a provision of the parties' collective bargaining agreement which constitutes an arrangement for employees adversely affected by the exercise of management's right to select applicants for bargaining unit positions by other than competitive promotion.

As interpreted by the Arbitrator, Article 13 precludes the Agency from placing supervisors or managers into certain bargaining unit positions without competition except by first putting them into non-budgeted positions. As noted by the Agency, such a restriction on the solicitation and consideration of applicants for vacant positions directly interferes with management's right to select under section 7106(a)(2)(C) of the Statute. See American Federation of Government Employees, Local 3296 and National Guard Bureau, Alaska National Guard, 33 FLRA 99 (1988).

In our view, however, such a restriction constitutes an arrangement for employees adversely affected by the exercise of management's right to select under section 7106(a)(2)(C) of the Statute. To the extent that supervisors and managers are reassigned to bargaining unit vacancies without competition, opportunities of barg