48:1329(138)AR - - NTEU, Chapter 68 & Treasury, IRS, Andover Service Center - - 1994 FLRAdec AR - - v48 p1329



[ v48 p1329 ]
48:1329(138)AR
The decision of the Authority follows:


48 FLRA No. 138

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 68

(Union)

and

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

ANDOVER SERVICE CENTER

(Agency)

0-AR-2488

_____

DECISION

January 5, 1994

_____

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 Janet Maleson Spencer filed by the Union 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 Agency filed an opposition to the Union's exceptions.

The Arbitrator denied the grievance of an employee who claimed that she was entitled to automatic conversion from seasonal status to permanent status. For the following reasons, we will deny the Union's exceptions to the Arbitrator's award.

II. Background and Arbitrator's Award

The Union filed a grievance alleging that the grievant was improperly denied conversion to permanent status after she had worked as a seasonal employee for more than 365 days. The parties agreed that the Arbitrator's decision concerning the grievant would apply to 98 other seasonal employees who were similarly situated. The Agency contended that it could not take the action requested by the Union because there were no permanent positions available as the result of a hiring freeze.

The grievance was submitted to arbitration on the following issue, framed by the Arbitrator:

Did the Agency violate the contract, law, rule, regulations or the local agreement by failing to convert [the grievant] to a permanent status? If so, what should be the remedy?

Award at 2 (footnote omitted).

The Arbitrator noted that the definition of seasonal employment in Article 22, Section 2A of the parties' collective bargaining agreement is similar to the definition used by the Office of Personnel Management (OPM). Article 22, Section 2A of the collective bargaining agreement provides as follows:

A. Seasonal employment is annually recurring periods of employment totaling less than twelve (12) months a calendar year in which seasonal employees are periodically placed in non-pay status in accordance with pre-established conditions of employment.  

Id.

Prior to 1987, seasonal employees of the Agency could be converted to permanent status only through competitive selection procedures. The Arbitrator noted that prior to 1987, some employees had worked for more than 12 months and were not converted to permanent status. In 1987, because of a shortage of permanent employees, the procedures for conversion to permanent status were changed to allow seasonal employees who had worked for more than 365 consecutive calendar days to convert to permanent status noncompetitively. Those procedures were set forth in a memorandum of understanding (MOU) between the Agency and the Union, dated July 20, 1987.

In 1988, the Agency's staffing changed so that there was no longer a shortage of permanent employees and, in February 1989, the Agency's national office "imposed a total freeze on personnel actions, including conversion of seasonals." Id. at 4-5 (citation omitted). The Arbitrator noted that the Agency discussed the implications of the hiring freeze with the Union and that the "clear implication" of the memorandum documenting that discussion was that "a freeze on permanent appointments would necessarily affect conversions" of seasonal employees. Id. at 5. The Arbitrator also found that "the Agency developed a plan under which position vacancies would be announced as 'Temporary May Become Permanent' [and] seasonals could be selected for these positions on a competitive basis and if selected would be granted permanent employment status once the personnel freeze was lifted." Id. (citations omitted). The Arbitrator noted that the plan was implemented on February 17, 1989, without objection by the Union and that "[i]n November 1992, the Agency was still in a total freeze." Id. at 6 (citation omitted).

The Arbitrator found that the grievant was first hired as a seasonal employee on February 29, 1988, and that she signed a seasonal employment agreement accepting certain conditions of employment, including the condition that there was no guarantee of length of employment. She was released from and recalled to duty as a "seasonal batching and numbering clerk" several times. Id. at 7. She returned to work as a seasonal employee on January 25, 1989, and was selected competitively on July 16, 1989, "for a posted 'temporary: NTE [not to exceed] one-year' position, . . . as a batching and numbering clerk." Id. at 7-8 (citations omitted). The Arbitrator noted that "prior to accepting the 'temporary may become permanent' position," the grievant signed an employee certification which stated that "the position was 'temporary and revocable' due to 'budget restrictions[.]'" Id. at 8 (citation omitted). The grievant was released from duty in that position on May 31, 1990. She has been recalled and released from duty for periods of less than 1 year since that time.

The Union contended before the Arbitrator that the grievant was entitled to conversion to permanent status once her service exceeded 365 days during the period from January 1989 through May 1990 and that the Agency's refusal to convert her violated Federal Personnel Manual (FPM) chapter 340. The Union also contended that the Agency violated the July 1987 MOU, which permitted seasonal employees to convert to permanent status noncompetitively. Additionally, the Union maintained that it was not given notice of the change in policy in early 1989 to cease honoring the MOU. The Agency denied that it had violated any agreement provisions or the FPM.

The Arbitrator found that there was no violation of any provisions of FPM chapter 340 and noted that nothing in that chapter "explicitly state[s] that an employee retained in seasonal status for more than 12 months becomes de facto permanent." Id. at 19. The Arbitrator noted that FPM chapter 340, subchapter 4-1, relating to intermittent employees, specifically calls for automatic conversion to status in certain circumstances but that chapter 340 "is silent as to the consequences of employment of a seasonal employee in excess of 12 months." Id. She concluded that the failure of OPM to include a similar provision concerning seasonal employees "means that it did not intend such a consequence where seasonal employees were concerned." Id.

The Arbitrator noted that prior to the change in procedure set forth in the July 1987 MOU, the Union had never argued that seasonal employees who worked more than 365 days were entitled to automatic conversion to permanent status. The Arbitrator rejected the Union's reliance on Internal Revenue Service, Indianapolis District and National Treasury Employees Union, Chapter 49, 29 FLRA 232 (1987) (Indianapolis District) (Chairman Calhoun dissenting), reversed on reconsideration, 30 FLRA 850 (1987), request for reconsideration denied, 31 FLRA 16 (1988) and found that nothing in that decision supported the Union's claim that the grievant's conversion to permanent status was mandated by FPM chapter 340.

The Arbitrator next addressed whether there had been a contractual violation by the Agency and stated that "the collective bargaining agreement, neither explicitly or by implication, contemplates that conversion will be automatic when a seasonal employee works longer than 12 months." Id. at 21. The Arbitrator found that the MOU of July 1987 constituted an agreement between the parties, but gave the grievant "no rights." Id. The Arbitrator found that, in the MOU, "the parties did not contemplate that the conversion [from seasonal to permanent status] would take place even though there were no fillable permanent positions available." Id. at 22. The Arbitrator further stated that "this understanding of the scope and applicability of the 1987 Memorandum of Understanding is reinforced by the Union's response, or lack thereof, to management's creation of the 'temporary may become permanent position', of which it had actual notice (if not notice in compliance with the formalities of [the collective bargaining agreement])." Id. at 23. The Arbitrator found that "[t]his new route to permanent status was clearly a substitute for the 1987 route." Id. The Arbitrator found that "no contractual right to conversion was present because the contract, in so far as it existed, was mutually understood to be conditioned on the availability of permanent positions." Id. at 24. She concluded that the MOU was no longer in effect, having been replaced by the temporary procedure, and, consequently, the grievant had no rights under the MOU. The Arbitrator denied the grievance.

III. Positions of the Parties

A. The Union

The Union contends that the award is contrary to FPM chapter 340. The Union concedes that the Arbitrator correctly found that nothing in chapter 340 specifically requires that a seasonal employee be converted to permanent status after being on duty for more than 12 months. However, the Union maintains that the award is nevertheless deficient because the Arbitrator improperly distinguished the treatment of seasonal employees from the treatment of intermittent employees, who are entitled to conversion to part-time status after a certain length of service. In this regard, the Union relies on U.S. Department of Agriculture, Federal Grain Inspection Service and American Federation of Government Employees, Local 3157, 46 FLRA 189 (1992) (Federal Grain Inspection Service), in which the Authority denied exceptions to an arbitrator's award ordering the conversion of intermittent employees. The Union maintains that the Agency's refusal to convert the grievant to permanent status constitutes an improper substitution of the grievant for a full-time employee, which is contrary to FPM chapter 340. The Union contends that the Authority should modify the award to order the grievant prospectively converted to permanent status when a position becomes available.

The Union also asserts that the award is contrary to the "established principles of de facto employment." Exceptions at 6. In support of this contention, the Union cites Federal court decisions including Stevens v. Tennessee Valley Authority, 687 F.2d 158 (6th Cir. 1982) (Stevens) and Dove v. United States, 161 Ct. Cl. 768 (1963) (Dove). The Union also cites decisions of the Authority and its predecessor, the Federal Labor Relations Council (FLRC), including U.S. Department of the Treasury, Internal Revenue Service, Cincinnati District, Cincinnati, Ohio and National Treasury Employees Union, Cincinnati Joint Council, 47 FLRA 207 (1993) (Cincinnati District); Indianapolis District; and Internal Revenue Service, Jacksonville District and National Treasury Employees Union, Florida Joint Council, 6 FLRC 558 (1978) (Jacksonville District). The Union contends that the grievant's "actual conditions of employment with an opportunity for conversion were not recognized; instead, the absence of specific language in the FPM providing for conversion and the label 'seasonal' contributed to [the Arbitrator's] denial of relief." Id. at 7.

B. The Agency

The Agency maintains that the award is not contrary to FPM chapter 340 and that the Arbitrator made a reasonable interpretation of that provision when she found that it did not require the Agency to convert the grievant to permanent status. The Agency asserts that the Union has failed to show that any law or regulation requires that the grievant be converted to permanent status.

The Agency asserts that the award is not contrary to any legal principles of de facto employment as claimed by the Union and contends that none of the cases cited by the Union provides a basis for finding the award deficient. The Agency maintains that the Union is merely disagreeing with the Arbitrator's findings and conclusions and that there was no basis for the ordering relief for the grievant in this case.

IV. Analysis and Conclusions

We conclude that the Union has failed to establish that the award is deficient.

A. The Award Is Not Contrary to the FPM

We find no merit in the Union's exception that the award is deficient on the ground that it is contrary to FPM chapter 340. FPM chapter 340, subchapter 2 provides guidance concerning the use of seasonal employees. The Union has not established that the Arbitrator's award is inconsistent with any portion of FPM chapter 340 and, in particular, has failed to show that the regulation requires the conversion of the grievant in this case from seasonal to permanent status. As the Arbitrator found and the Union concedes, nothing in FPM chapter 340, subchapter 2 requires that seasonal employees be converted to permanent status after having worked for more than 365 days.

We find that the Union's reliance on Federal Grain Inspection Service is misplaced. The Arbitrator did not err in distinguishing that case from the instant case. Rather, the Arbitrator correctly observed that Federal Grain Inspection Service concerned the claims of on-call employees that they were entitled to conversion to permanent full-time status pursuant to FPM chapter 340, subchapter 3 and to the individual employment agreements covering those employees. There is nothing in Federal Grain Inspection Service that required the Arbitrator to find that the grievant in this case must be converted to permanent status.

Therefore, we conclude that the Union's contention that the Arbitrator's award is contrary to FPM chapter 340 constitutes mere disagreement with the Arbitrator's interpretation of that FPM provision and with her conclusions based thereon. As such, the exception provides no basis for finding the award deficient. See American Federation of Government Employees, AFL-CIO, Local 2754 and General Services Administration, Region Six, Kansas City, Missouri, 45 FLRA 670, 673 (1992) (union's exceptions denied where union failed to show that award was inconsistent with the FPM).

B. The Award Is Not Contrary to Law

We construe the Union's exception that the award is contrary to principles of de facto employment as a contention that the award is contrary to law under section 7122(a) of the Statute. We find that the Union has failed to establish that the award is deficient on this basis.

With respect to the two Federal court decisions cited by the Union, we find that neither decision supports the Union's contention that the grievant was entitled to conversion to permanent status by virtue of having worked for more than 365 days. In Stevens, the court did not establish a broad principle of de facto employment that would be applicable to the circumstances of the present case. Rather, the court found that, for purposes of the Vietnam Era Veteran's Readjustment Assistance Act, 38 U.S.C. § 2021 et seq., the mere designation of a position as temporary, in itself, does not exempt the position from the Act if the other characteristics of the position show that the position is not temporary. In this case, however, there is no question that the grievant was in fact, as well as designation, a seasonal employee from January 25 through July 15, 1989, and a temporary employee from July 16, 1989, through May 31, 1990. The issue decided by the Arbitrator concerned whether the grievant was entitled to conversion to permanent status under either the FPM or the parties' agreement, not whether the grievant was denied conversion because her position was incorrectly designated. The Arbitrator found that there was no entitlement.

In Dove, the Court of Claims found that the then Civil Service Commission (CSC) improperly denied a when-actually-employed (WAE) employee retirement rights because the CSC erroneously calculated the employee's length of service and did not follow its own standards for crediting the work time of WAE employees. In this case, as the Arbitrator found, there was no showing that the Agency failed to comply with any regulation or provision of a collective bargaining agreement that required the Agency to convert the grievant to permanent status after working for more than 365 days. We find nothing in either Stevens or Dove to support the Union's claim that the award is deficient on the ground that the Arbitrator failed to apply any legal principle of de facto employment established by Federal courts.

Similarly, we find that the Union's exception has no support in the cited decisions of the Authority and the FLRC. In Cincinnati District, the Authority denied the agency's exceptions to an arbitrator's award of backpay pursuant to a provision in a negotiated agreement to employees who had been assigned higher-graded duties. In Indianapolis District, the Authority initially found that the arbitrator erred in finding that an employee had been converted from a seasonal part