40:0985(84)AR - - NTEU Chapter 251 and Treasury, IRS, Washington, DC - - 1991 FLRAdec AR - - v40 p985



[ v40 p985 ]
40:0985(84)AR
The decision of the Authority follows:


40 FLRA No. 84

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 251

(Union)

and

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

WASHINGTON, D.C.

(Agency)

0-AR-1906

DECISION

May 24, 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 Mollie H. Bowers 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 found that under provisions of the parties' collective bargaining agreement, five of the grievants were entitled to have been promoted earlier than the date on which the Agency effected their promotions.

For the reasons which follow, we conclude that the Arbitrator's enforcement of these provisions is contrary to the Statute, and we will modify the award accordingly.

II. Background and the Arbitrator's Award

The employees of the Agency have been represented by the Union since 1987 in a unit consisting of professional employees (attorneys and tax law specialists) and nonprofessional employees. On July 8, 1988, the parties agreed to their first term collective bargaining agreement, and the agreement was submitted for agency-head review in accordance with section 7114(c) of the Statute. On August 3, 1988, pursuant to section 7114(c), the Agency disapproved 49 provisions of the agreement. Among the provisions disapproved was Article 22, Section 6 pertaining to career ladder promotions. As negotiated by the parties, Article 22, Section 6(A) provided:

Employees in career ladder positions will be promoted on the first pay period after:

1. the employee becomes eligible to be promoted . . . ;

and

2. the employee is capable of satisfactorily performing at the next higher level.

The remainder of the collective bargaining agreement was put into effect by the parties in September 1988, and the Union petitioned the Authority for review of the negotiability issues raised by the disapproval. At all material times during this case, the Union's petition was pending before the Authority as Case No. 0-NG-1582. (1)

Effective October 1, 1988, the Agency's Office of Chief Counsel was reorganized, and, as a result, 35 employees, including both attorneys and tax law specialists, were promoted noncompetitively to GS-14. All of these employees were eligible for promotion on the basis of having been at the GS-13 level for at least 1 year and having been recommended for promotion by their supervisors. Their promotions were effective October 23, 1988.

Thirteen of these employees filed a grievance--five tax law specialists, who are in the competitive service, and eight attorneys. The grievants alleged that under provisions of the parties' collective bargaining agreement, including specifically Article 22, Section 6, they should have been promoted effective October 9, 1988, the beginning of the first pay period after the reorganization. The grievance was not resolved and was submitted to arbitration.

Before the Arbitrator, the Union argued that based on the Agency's statement of position filed in 0-NG-1582, the Agency had disapproved Article 22, Section 6 only as it applied to excepted service employees. The Union maintained that the provision was enforceable with respect to competitive service employees and that 12 of the 13 grievants are competitive service employees. The Agency argued that Article 22, Section 6 was disapproved in its entirety and the disapproval was unaffected by the Agency's statement of position in 0-NG-1582. The Agency claimed that Article 22, Section 6 was not enforceable as to any category of employee in view of the Union's failure to have renegotiated the contested language. The Agency further claimed that, even if the Union's position were accepted, only the tax law specialists are in the competitive service because the attorney grievants were converted to the excepted service as a result of the reorganization.

The Arbitrator stated the issue to be whether there was a contract provision in effect in October of 1988 that required the promotion of the 13 grievants on October 9, 1988. The Arbitrator found that Article 22, Section 6 was in effect and was enforceable with respect to competitive service employees. The Arbitrator concluded that the Agency's disapproval of Article 22, Section 6 "[wa]s modified by its brief to the FLRA" in which this provision was "only alleged to be non-negotiable with respect to excepted service employees[.]" Award at 10. The Arbitrator determined that, contrary to the Agency's position, "there [wa]s no need to specifically renegotiate this language since both parties share[d] a common understanding of the scope of Article 22." Id.

With respect to the five tax law specialists, the Arbitrator ruled that they were covered by Article 22, Section 6 because they were competitive service employees and that they had fulfilled the contractual requirements. Accordingly, the Arbitrator held that they were entitled to have been promoted effective October 9, 1988, and she awarded them promotions retroactive to that date with backpay and interest.

The Arbitrator denied the grievance with respect to the eight attorneys. She ruled that they were not covered by Article 22, Section 6 because the Union had failed to prove that they were in the competitive service and that they were not otherwise entitled to have been promoted earlier than they had been.

III. Positions of the Parties

A. The Agency's Exceptions

The Agency contends that the award is contrary to law and that the Arbitrator exceeded her authority.

The Agency argues that Article 22, Section 6 was never part of the parties' collective bargaining agreement and that, consequently, by granting relief on a nonexistent provision, the award is contrary to law. The Agency notes that on August 3, 1988, pursuant to section 7114(c) of the Statute, the Agency disapproved numerous provisions of the parties' collective bargaining agreement, including Article 22, Section 6, and that the parties' collective bargaining agreement was put into effect without the disapproved provisions. The Agency asserts that Article 22, Section 6 was disapproved in its entirety and that no evidence exists to the contrary. The Agency further asserts that its statement of position filed in 0-NG-1582 did not, and could not, modify the disapproval that precluded Article 22, Section 6 from becoming enforceable. The Agency maintains that only an express agreement of the parties, which did not exist in this case, could have reinstated Article 22, Section 6 as part of the collective bargaining agreement.

The Agency contends that the Arbitrator exceeded her authority by ruling on a negotiability issue that must be resolved exclusively by the Authority. The Agency asserts that by deciding that Article 22, Section 6 is part of the parties' collective bargaining agreement for competitive service employees, the Arbitrator has impermissively usurped the Authority's prerogative to determine the negotiability issue of whether Article 22, Section 6 is to any extent negotiable.

B. The Union's Opposition

The Union contends that the Agency fails to establish that the award is contrary to law. The Union asserts that the Agency's exception constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the parties' collective bargaining agreement and the Arbitrator's findings of fact.

The Union maintains that the Arbitrator found that the Agency had modified or clarified its disapproval of Article 22, Section 6 when it stated in its statement of position in 0-NG-1582 that the provision was disapproved insofar as it applied to excepted service employees. The Union further maintains that, consequently, the Arbitrator found as a matter of fact that Article 22, Section 6 was in effect for competitive service employees. The Union claims that, therefore, the Agency's exception constitutes nothing more than disagreement with this finding of fact by the Arbitrator and provides no basis for finding the award deficient.

The Union further claims that it is clear that the award is based on the Arbitrator's interpretation and application of the parties' collective bargaining agreement. The Union asserts that nothing in the Arbitrator's interpretation of the agreement has been shown to be implausible, unfounded, or irrational and that, consequently, no basis is provided for finding the award deficient.

The Union also contends that the Agency fails to establish that the Arbitrator exceeded her authority by ruling on a negotiability issue. The Union maintains that the Arbitrator merely determined based on the record that Article 22, Section 6 was declared nonnegotiable by the Agency only with respect to excepted service employees. In the Union's view, it was not the Arbitrator who declared Article 22, Section 6 to be nonnegotiable insofar as it applied to excepted service employees, but the Agency. The Union asserts that the Arbitrator only applied that declaration by the Agency in resolving the grievance.

IV. Analysis and Conclusions

We conclude that the Arbitrator's enforcement of the provisions of Article 22, Section 6 is contrary to section 7114(c) of the Statute.

Section 7114(c) of the Statute establishes a process for the approval of collective bargaining agreements by agencies. Section 7114(c)(1) provides that the agreement "shall be subject to approval by the head of the agency." Section 7114(c)(2) establishes a 30-day time limit for this approval process. In addition, section 7114(c)(3) provides that a collective bargaining agreement automatically becomes effective and binding on the parties, subject to applicable law, rule, or regulation, if the agency head or designee has not acted to approve or disapprove the agreement within the 30-day period. Thus, by the plain language of section 7114(c), it is collective bargaining agreements and not specific provisions of those agreements that are approved or disapproved by agency heads under section 7114(c). See U.S. Department of the Army, Watervliet Arsenal, Watervliet, New York and National Federation of Federal Employees, Local 2019, 34 FLRA 98, 105 (1989) (citing Department of the Interior, National Park Service, Colonial National Historical Park, Yorktown, Virginia, 20 FLRA 537, 541 (1985) (Colonial National Historical Park), aff'd sub nom. National Association of Government Employees, Local R4-68 v. FLRA, 802 F.2d 1484 (4th Cir. 1986)). Consequently, when provisions of a collective bargaining agreement are timely disapproved by the agency head under section 7114(c), the collective bargaining agreement does not go into effect and is not enforceable under provisions of section 7114(c). Id. (citing Department of the Interior, Washington, D.C., 31 FLRA 267, 276 (1988)). Of course, the parties may agree to implement provisions of the agreement not disapproved by the agency, and by such agreement those provisions would take effect and would be enforceable. Id. (citing Colonial National Historical Park, 20 FLRA at 541 n.6).

It is not disputed that, within the 30-day approval period under section 7114(c), the designee of the Agency head disapproved 49 provisions of the parties' collective bargaining agreement. As a result, applying the approval process under section 7114(c) of the Statute, as it has been interpreted by the Authority, Article 22, Section 6 never took effect and was not enforceable by the Arbitrator. Further, it is not disputed that, consistent with Authority precedent, the parties subsequently agreed to put into effect those provisions of the collective bargaining agreement that had not been disapproved by the Agency. It also is not disputed that Article 22, Section 6 was specifically disapproved, without qualification, on August 3, 1988, and was not subject to any subsequent agreement or renegotiation by the parties. Therefore, by operation of section 7114(c) of the Statute, Article 22, Section 6 never took effect. We further note that in our decision in Office of Chief Counsel, we dismissed the Union's petition for review with respect to Article 22, Section 6, rather than ordering the disapproval rescinded.

Accordingly, we find that the award is deficient and must be modified. We reject, as contrary to section 7114(c), the Arbitrator's ruling that the disapproval of Article 22, Section 6 was modified by the Agency's brief in Office of Chief Counsel such that there was no need to specifically renegotiate this language. To the contrary, under section 7114(c), the Agency's disapproval of Article 22, Section 6 was unaffected by its brief in Office of Chief Counsel and required specific renegotiation by the parties to put into effect and make enforceable any collective bargaining agreement provisions for career ladder promotions. Because we have found the award contrary to section 7114(c) of the Statute, we reject the Union's arguments that the Agency's exceptions constitute nothing more than disagreement with the Arbitrator's findings of fact and her interpretation and application of the collective bargaining agreement. Therefore, we will modify the award to strike enforcement of Article 22, Section 6. (2)

V. Decision

The award is modified by s