46:0572(55)AR - - Treasury, IRS, Southeast Region, Atlanta, GA and NTEU Chapter 6 - - 1992 FLRAdec AR - - v46 p572
[ v46 p572 ]
The decision of the Authority follows:
46 FLRA No. 55
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
NATIONAL TREASURY EMPLOYEES UNION
November 20, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Bernard H. Cantor 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 exceptions.
The Union contested the Agency's failure to place the grievant on a best qualified list for a promotion to a GS-12 position. The Arbitrator sustained the grievance and ordered the Agency to accord the grievant priority consideration for the next available GS-12 position.
For the following reasons, we conclude that the Agency has failed to establish that the award is deficient, and we will deny the Agency's exceptions.
II. Background and Arbitrator's Award
The Union filed a grievance alleging that the Agency's failure to place the grievant on a best qualified list for promotion to a GS-12 Revenue Agent position was based, as relevant here, on a performance appraisal that was issued without performance counseling, as required by the parties' collective bargaining agreement. The Union sought for the grievant either a retroactive promotion with backpay or priority consideration for the next appropriate position.
When the grievance was not resolved, it was submitted to arbitration. As relevant here, the Arbitrator framed the issue as follows:
Whether the evaluation on that particular element which was reduced by the supervisor over the last prior evaluation was in violation of Article 12[,] 4 M of [the parties' collective bargaining agreement] calling for counseling of employees 'when a manager notices a decrease in performance,' and, if so, what remedy is required.
Award at 3-4.
The Arbitrator determined that Article 12, Section 4M of the parties' agreement (1) could "be read objectively from its own four corners" as requiring supervisors to counsel employees on an "as needed" basis whenever a supervisor notices a decrease in an employee's performance. Id. at 14. The Arbitrator acknowledged, but disagreed with, a previous arbitration award where an arbitrator found that, under Article 12, Section 4M, counseling was required only when an employee's overall rating decreases.
Next, the Arbitrator found that although "the supervisor . . . saw a decline in the grievant's performance[,] . . . [he] did nothing about counseling." Id. at 17. The Arbitrator found that the grievant's rating resulted from the Agency's failure to satisfy the counseling requirements of the parties' agreement. The Arbitrator also stated that "[t]he absence of counseling supports the . . . finding that performance did not decline." Id. (emphasis in original).
The Arbitrator concluded that, under the parties' agreement, the Agency's failure to properly counsel the grievant required that the grievant's previous higher performance rating be restored. Consequently, the Arbitrator ordered the Agency to raise the grievant's rating, include her on the previous best qualified list, and afford her priority consideration for the next appropriate GS-12 position.
The Agency asserts that the award is contrary to law for two reasons. First, the Agency claims that the award violates section 7101(b) of the Statute because it would result in ineffective and inefficient management within the Agency.(2) The Agency claims that the award places an "onerous burden" on the Agency by requiring managers "to micro-manage employees" and "to address every little defect in [their] performance on a daily basis." Exceptions at 4-5.
Second, the Agency claims that the award violates the its rights under section 7106(a)(1) and (2) of the Statute to determine its budget, organization, and number of employees, to assign work, and to determine the personnel by which Agency operations shall be conducted. The Agency's sole argument, in this connection, is that the award results from the Arbitrator's disagreement "with how the IRS operates [its] large case program . . . ." Id. at 6.
Finally, the Agency maintains that the Arbitrator's finding that Article 12, Section 4M of the parties' agreement is "clear on its face" is a gross mistake of fact, but for which a different result would have been reached. Id. at 7. The Agency claims that, as another arbitrator interpreted the provision differently, the provision cannot be found clear on its face.
The Union maintains that the Agency's exceptions constitute "mere disagreement with the Arbitrator's findings and conclusions." Opposition at 4.
The Union argues that the Arbitrator's interpretation of Article 12, Section 4M is "wholly consistent" with the requirement of an effective and efficient Government and that the Arbitrator did not require the Agency to counsel employees about defects in their performance on a "'daily basis.'" Id. at 6. The Union also argues that the award does not interfere with management's rights under section 7106(a) of the Statute. According to the Union, the Agency remains "free to assign and direct work in any way" consistent with the parties' agreement. Id. at 7. Finally, the Union maintains that, as arbitration awards are not precedential, the award may not be found deficient on the basis of a conflict with a previous award.
V. Analysis and Conclusions
A. The Award Is Not Contrary to Section 7101(b) of the Statute
The Arbitrator held that Article 12, Section 4M of the parties' agreement required the supervisor to counsel the employee when there was a decline in the employee's performance. In this respect, the Arbitrator noted that although the parties' agreement does not require that such counseling "must" occur when a manager notices a decrease in an employee's performance, the agreement "certainly indicates that [such counseling] 'normally' . . . ought to" occur when a manager notices a decrease performance. Award at 14.
Based on these arbitral findings, we reject the Agency's arguments that the award would require a manager to "immediately bring to an employee's attention egery defect in the employee work[,]" and to "be continuously and directly involved in all work . . . ." Exceptions at 4, 5. Moreover, the Agency has not demonstrated, and we are not aware of any basis on which to conclude, that the Arbitrator's interpretation of the agreement is inconsistent with section 7101(b) of the Statute. See United States Army Missile Command, Redstone Arsenal, Alabama and American Federation of Government Employees, Local 1858, 9 FLRA 392, 393 n.* (1982). Consequently, we conclude that this exception does not provide a basis for finding the award deficient.
B. The Award Does Not Interfere with Management's Rights Under Section 7106(a)(1) and (2) of the Statute
The Agency asserts that the award violates management's rights under section 7106(a)(1) and (2) of the Statute to determine its budget, organization, and number of employees, to assign work, and to determine the personnel by which Agency operations are conducted. The Agency's sole argument, in this connection, is that award results from "disagreement with how the IRS operates" the program in which the grievant was employed. Exceptions at 6.
The Arbitrator did not direct the Agency to change its organization or the number or types of personnel it employs to supervise or work on large case programs. Rather, the Arbitrator discussed the supervisor's failure to comply with the parties' agreement by not counseling the grievant regarding her performance. According to the Arbitrator:
. . . the supervisor says he saw a decline in the grievant's performance and did nothing about counseling. This is related to the fact that this supervisor was not continuously and directly active in the particular audit. Much of it was left substantially to the support crew. . . . More likely, if he had been more closely involved in the supervision, he would have been able to bring up a matter of quality of work.
In our view, the Agency's exception mischaracterizes the award. The Arbitrator did not direct the Agency to change its organization, its budget, or the number or types of personnel it employs to supervise or work on its programs. Indeed, the award does not require the Agency to exercise its rights in any particular way.
Because the award does not require the Agency to change its organization, its budget determinations, the way in which it administers the supervision of its employees, or the way in which it assigns the work of its large case programs, the award does not interfere with management's rights under section 7106(a)(1) and (2) of the Statute. Consequently, this exception does not provide a basis for finding the award deficient. See U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Hyattsville, Maryland and National Association of Agriculture Employees, 38 FLRA 1291, 1295 (1991).
C. The Agency Has Not Demonstrated That the Award is Based on Nonfact
To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous but for which a different result would have been reached by the arbitrator. For example, U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 41 FLRA 535, 539 (1991)(Philadelphia Naval Shipyard).
The Agency asserts that the Arbitrator's statement that Article 12, Section 4M of the parties' agreement was "clear on its face" is a gross mistake of fact, but for which a different result would have been reached. Exceptions at 7. The Agency argues that, because another arbitrator interpreted Article 12, Section 4M differently, the provision cannot be found clear on its face.
The Agency has not demonstrated that the Arbitrator's award is based on a nonfact. The Arbitrator's statement that Article 12, Section 4M "can be read objectively from its own four corners" is his interpretation of the contract provision. Award at 14. An arbitrator's interpretation of a contract provision is not a fact that can be challenged as a nonfact. See American Federation of Government Employees, AFL-CIO, Local 3615 and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, 44 FLRA 806, 818 (1992); and U.S. Department of the Treasury, Internal Revenue Service, Brooklyn District and National Treasury Employees Union, Chapter 53, 41 FLRA 1295, 1300-01 (1991).