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49 FLRA No. 108

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

U.S. DEPARTMENT OF THE TREASURY

U.S. CUSTOMS SERVICE

(Agency)

0-AR-2566

_____

DECISION

May 31, 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 Samuel A. Vitaro 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 Union filed grievances concerning the appointment and proper use of intermittent and seasonal employees and the entitlement of full-time inspectors to overtime. The Arbitrator sustained the grievances as to the overtime entitlements of full-time inspectors and the use of intermittent employees before 1991. He denied the grievances as to the appointment of intermittent employees and their use since 1991. He also denied the grievances as to the use of seasonal employees. We conclude that the Union fails to establish that the Arbitrator's denial of the grievances is deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

In 1959, the Civil Service Commission (CSC), the predecessor agency to the Office of Personnel Management (OPM), granted the Agency an excepted service appointment authority. As set forth in Schedule A, Section 213.3105(b)(5), the authority pertinently provides as follows:

Positions at GS-9 and below of . . . Customs Inspector . . . with duties of a continuing nature that require the part-time or intermittent service of an employee for not more than 700 hours in his/her service year. An individual appointed under this exception may not be employed in the Bureau of Customs under a combination of this and any other exception for more than 700 hours in his/her service year.

Under this authority, the Agency appoints and employs customs inspectors for intermittent duties for a period not to exceed 700 hours in a year. The Agency also appoints and employs customs inspectors under temporary limited appointments pursuant to a summer employment program. These employees serve in competitive service positions and are appointed for employment beginning after May 12 and ending before October 1 of the same year. In some port locations, the Agency converts inspectors on excepted service appointments to summer appointments, after which they are reconverted to inspectors for intermittent duties under the excepted service appointment authority for another year not to exceed 700 hours.

The Union filed a number of local grievances and a regional grievance concerning the appointment and proper use of intermittent and seasonal employees and the entitlement of full-time inspectors to overtime. The grievances were not resolved and were submitted together to arbitration. The Arbitrator stated the issues presented as follows:

1) Whether the Agency's practice of combining an excepted service appointment with a competitive summer service appointment violates the 700 hour service limitation contained in Schedule A, 213.3105(b)(5)?

2) Whether the Agency's use and conversion of summer hire employees violates Federal regulations?

3) Whether the Agency improperly schedules and/or assigns its 700-hour Schedule A, excepted service intermittent employees to perform predictable and regularly scheduled work in violation of law or Federal regulations?

4) Whether the Agency properly refuses to assign doubleback shifts until it has gone through the entire call out order of INS-2, II-D.?

5) If the answer to any of the above is yes, what is the remedy?

Award at 23 (footnote omitted).

With respect to the first issue, the Union argued before the Arbitrator that the Agency's practice of combining an excepted service 700-hour limited appointment with a competitive service summer appointment violates the Schedule A, Section 213.3105(b)(5) exception granted the Agency by the Civil Service Commission. The Union asserted that the granting of excepted service hiring authority implicitly prohibited competitive hiring for the same position because the excepted service authority was granted on the basis that competitive hiring was not practicable. The Union further asserted that the Agency's practice is contrary to the rationale under which it was granted excepted service appointment authority and is inconsistent with 5 U.S.C. § 3302, which allows excepted service hiring only when necessary because competitive hiring is not feasible. The Union claimed that its position was supported by: (1) a letter to the Agency in 1978 from the Director of the Bureau of Recruiting and Examining of the Civil Service Commission expressing concerns to the Agency about its use of this appointing authority; (2) Federal Personnel Manual (FPM) chapter 213; and (3) a personnel manual of the Agency (Policies and Procedures Manual Supplement No. VIII-51300-01).

The Agency argued that the Union had misinterpreted the Agency's excepted service authority. The Agency asserted that this appointment authority prohibits only the combining of an excepted service 700-hour appointment with another excepted service appointment. The Agency maintained that there was no prohibition on combining the excepted service 700-hour appointment with an appointment to a competitive service position under the summer employment program.

In addition, the Agency claimed that this interpretation was supported by recent guidance provided to the Agency by OPM. The Agency explained that the Agency's Director of Human Resources had recently written OPM's Chief of Staffing inquiring about the Agency's practice of converting 700-hour intermittent employees to summer appointments. In the letter, the Director stated as follows:

It is our interpretation that it is proper to convert our Inspectors on excepted appointments to summer appointments since the summer positions are filled competitively and our excepted authority contains a prohibition only against the use of excepted, not competitive, appointments to extend the service limits of the authority.

OPM's Chief of Staffing replied as follows:

We concur. This Schedule A appointment authority's prohibition on the continued employment of its appointees for more than 700 hours in their service year pertains only to employment in the excepted, not the competitive, service. This Schedule A authority does not address competitive service employment.

The Agency also asserted that the Agency personnel manual relied on by the Union was void and, in any event, could not override OPM's interpretation of the appointment authority.

The Arbitrator concluded that the Union had not proven that the Agency violated its excepted service appointment authority by converting 700-hour intermittent employees to summer seasonal employment. The Arbitrator ruled that the plain language of the appointment authority indicated that the Agency was barred only from combining an appointment under the 700-hour excepted service appointment authority with an appointment under another excepted service appointment authority. He also found that this interpretation of the appointment authority was consistent with the opinion provided the Agency by OPM's Chief of Staffing. Although the Arbitrator accepted the opinion into evidence over the objections of the Union, he considered the arguments of the Union that this opinion was hearsay, that it was admitted into evidence without the opportunity for cross examination by the Union, that it was solicited by the Agency, and that it was unclear. On the basis of the Union's arguments, the Arbitrator concluded that the opinion was not entitled to the usual deference accorded agency determinations. In support of this conclusion, he cited Parker v. OPM, 974 F.2d 164 (Fed. Cir. 1992) (Parker). Although he determined that scrutiny of the opinion was warranted, he found that the opinion was clear and was highly probative because of its currency, its consistency with the appointment authority itself, and its origin from the agency charged with the responsibility of administering appointments to the civil service. The Arbitrator also found that the Union's claim of a lack of cross examination was undercut by the lack of evidence that the Union sought to identify OPM's Chief of Staffing as a witness.

The Arbitrator also rejected the Union's claim that the Agency's practice was contrary to FPM chapter 213. Although he recognized that under FPM chapter 213, OPM could prohibit the extensions of limited appointments through either an excepted service or competitive service appointing authority, he found that the Agency's appointing authority suggested a conscious decision not to bar the Agency's extension of the 700-hour limitation by a competitive service appointing authority. The Arbitrator further rejected the Union's claim that an Agency personnel manual supported its position. He found that the manual related to a region that was dissolved 10 years ago and that, consequently, the manual was considered void. In addition, he ruled that, in any event, the manual could not override the opinion of OPM to the contrary.

The Arbitrator also concluded that the 1978 CSC letter did not involve the same practice as disputed here. Nevertheless, he held that to the extent that CSC was then objecting to any appointment or conversion of the excepted service intermittent employees in the summer, the objection was contrary to the plain language of the Agency's appointment authority and the more recent opinion of OPM's Chief of Staffing.

The Arbitrator also rejected the Union's arguments that the Agency's use of its appointment authority was contrary to the rationale under which it was granted and was inconsistent with 5 U.S.C. § 3302. Although the Arbitrator acknowledged that the basis on which the Schedule A exception was granted does not apply to its current use at some ports, he noted that OPM had not acted to revoke the appointment authority even though the Agency had informed OPM of its inconsistent use at some ports. He also ruled that arguments concerning the consistency of the Agency's use of the exception with 5 U.S.C. § 3302 were more appropriately addressed to OPM through the revocation procedure, which he noted the Union had done in its February 12, 1993 petition to OPM requesting that OPM revoke the Agency's appointment authority. He similarly noted that the Union's requested remedy of a cease and desist order as to the use of the Schedule A exception would, in effect, revoke the appointment authority and was also a request more appropriately addressed to OPM. Accordingly, the Arbitrator denied the grievances on the issue of the appointment of 700-hour intermittent employees to competitive service positions under the summer employment program.

With respect to the second issue, the Union argued that the Agency uses summer employees to fill permanent needs in violation of FPM chapter 316 and FPM chapter 332, Appendix J. The Union also argued that the Agency violated the provision of FPM chapter 316 that limits summer appointees to a term of no more than 4 years. The Agency claimed that the 4-year limitation on continuous temporary employment does not apply to summer employment and that, in any event, summer employment is not continuous because of the break in service between the summer appointments. The Agency also asserted that its use of summer employees was for a proper purpose.

The Arbitrator concluded that the Union had not proven that the Agency misused competitive service seasonal employees. He agreed with the Agency that the 4-year limitation on continuous temporary employment does not apply to summer employment and that, even if it did, the Agency had not violated the limitation because of the break in service between the appointments. He rejected the claim of the Union that the Agency was using summer employees to fill permanent staffing needs in violation of FPM chapter 316. The Arbitrator ruled that what determines compliance with FPM chapters 316 and 332 is whether the work is performed to meet seasonal demands. In the Arbitrator's view, it did not matter that the work, itself, is work that full-time, permanent inspectors could perform, as long as it was part of a seasonal demand. In the Arbitrator's view, it also did not matter that the summer hires assisted the various ports in operating at an acceptable level. Finding that the Agency had used summer hires to address the seasonal demand of customs inspections and noting that the FPM grants considerable discretion to agencies in their use of summer hires, the Arbitrator ruled that the Agency's use of summer employees was appropriate and not to fill a permanent need. Accordingly, he denied the grievances on the issue of the use of seasonal employees.

With respect to the third issue, the Union argued that the Agency used 700-hour intermittent employees in violation of FPM chapter 340 because the work that they perform is predictable and could be performed by regularly scheduled, part-time or full-time employees. The Agency argued that it did not misuse intermittent employees because the work is not appropriate for part-time or full-time employees and since 1991 intermittent employees have not been regularly scheduled.

The Arbitrator concluded that since 1991, when the Agency stopped scheduling intermittent employees in advance, the Agency has not misused such employees. The Arbitrator found that under FPM chapter 340, an intermittent work schedule is not appropriate when work is predictable and when work could be performed by a part-time or full-time employee. Although the Arbitrator found that the work of intermittent employees generally was predictable, he found that it would not have been appropriate to use part-time or full-time employees in place of the intermittent employees. He noted that intermittent employees were not used the way part-time or full-time employees were used: the work performed by intermittent employees seldom averaged 16 hours per week per employee (the minimum number of hours for a part-time employee); the work often involved short-term assignments inconsistent with the work of permanent employees; and the duties performed by intermittent employees and the duties performed by permanent employees were not always the same. Accordingly, the Arbitrator denied the grievances on the issue of the use of intermittent employees since 1991. However, he found that prior to April 1991 the Agency had improperly prescheduled intermittent employees and awarded them annual and sick leave benefits.

The Arbitrator also sustained the grievances on the issue of overtime and awarded those full-time inspectors who had been denied overtime work backpay with interest.

III. First Exception

A. Positions of the Parties

1. The Union

The Union contends that the Arbitrator's determination that the Agency's conversion of intermittent employees to summer employment did not violate its appointment authority is contrary to law and regulation.

The Union contends that the Arbitrator's determination is contrary to regulation because the Arbitrator misinterpreted the Agency's Schedule A, excepted service appointment authority. The Union argues that it was illogical for the Arbitrator to conclude that the Agency's appointment authority permits the combination of a 700-hour appointment with an appointment for summer seasonal appointment simply because the Schedule A exception expressly prohibits the combination of a 700-hour appointment with any other excepted service appointment. The Union maintains that such a construction undermines the statutory protections of the competitive service. The Union asserts that the granting of an exception to competitive appointments is, in and of itself, an implicit prohibition on competitive hiring for the same position.

The Union also argues that the evidence demonstrates that the Schedule A exception is intended to prohibit any combination of appointments that would extend employment in the position for more than 700 hours. The Union maintains that the Schedule A exception has been granted for "duties of a continuing nature that require part-time or intermittent service of an employee for not more than 700 hours in his/her service year." The Union claims that this description demonstrates that positions which require or can be filled for more than 700 hours a year are not eligible for Schedule A excepted service appointments. The Union further argues that the Arbitrator's interpretation of the Schedule A exception is contrary to FPM chapter 213, Appendix A. The Union quotes the provision of the Appendix providing that some appointing authorities contain a prohibition against use of appointments to extend the service limits of any other authority and that the prohibition refers to any combination of appointments, under excepted or competitive authorities, that would permit an employee's aggregate service to exceed the maximum that would have been possible under a single authority. In the Union's view, the Agency's practice violates the explicit direction of FPM chapter 213, Appendix A.

The Union asserts that the interpretation by the Civil Service Commission supports its position that the Arbitrator misinterpreted the Agency's Schedule A exception. The Union quotes the 1978 letter from CSC advising the Agency that positions removed from the competitive service by placement in Schedule A are not to be filled under any competitive appointing authority and that use of 700-hour appointments in the summer for individuals appointed under Schedule A would amount to the circumvention of the service limit of the Schedule A authority. The Union maintains that a close scrutiny of the letter demonstrates that the discussion of 700-hour appointments in the summer refers to appointments in the competitive service and not to appointments in the excepted service. The Union also asserts that the Agency's response to CSC suggests that the Agency viewed a combination of such appointments to be prohibited.

In addition, the Union maintains that the Agency has consistently issued internal personnel manuals and guidance that construe the exception as prohibiting a combination of appointments under the exception and the summer employment program. In support, the Union cites a guide for supervisors and managers, which explains that appointments under the Schedule A exception are time limited because they are made only for positions for which it is impracticable to make competitive appointments, and Policies and Procedures Manual Supplement No. VIII-51300-01.

The Union contends that the Arbitrator violated law by relying on the opinion of OPM's Chief of Staffing. The Union argues that the opinion was nothing more than hearsay, was solicited by the Agency in preparation for this arbitration, and was not officially the opinion of OPM. The Union maintains that the Arbitrator improperly elevated that opinion to the level of an official OPM regulation and that his reasons for doing so are unjustified. In the Union's view, the currency of the opinion is precisely one of the factors that makes reliance on it deficient. The Union reiterates its arguments that the opinion is contrary to CSC's interpretation of the Agency's appointment authority and to the prohibition in FPM chapter 213. The Union asserts that an interpretation of the Schedule A exception that allows an extension of the 700-hour limitation is not a reasonable interpretation of an appointment authority that is based on the impracticality of competitive appointment. The Union further asserts that the OPM opinion should have been rejected by the Arbitrator just as the affidavit of a deputy assistant director of OPM was rejected in Parker.

The Union also argues that the Arbitrator abdicated his responsibility to adjudicate the Union's claim that the Agency's practice was contrary to 5 U.S.C. § 3302. The Union maintains that the Arbitrator's concerns that the Union's requested relief would, in effect, revoke the Agency's Schedule A exception were misplaced. The Union claims that the award is deficient because the Arbitrator was unduly influenced by the fact that the Union could present its arguments to OPM through the revocation procedure.

2. The Agency

The Agency contends that the Arbitrator's interpretation of its appointment authority is in compliance with all applicable laws and regulations.

The Agency asserts that the Arbitrator based his award on the plain language of the Schedule A exception and that the Union provides no basis for finding the award deficient. The Agency notes that the Arbitrator acknowledged that OPM has the authority, if it chooses, to prohibit extension of a limited appointment through either an excepted service or a competitive service appointing authority. In the Agency's view, the Arbitrator recognized that OPM has the statutory authority to grant agencies unique excepted appointments and correctly interpreted the plain language of the exception granted the Agency. In addition, the Agency notes that OPM has found no change in conditions that would warrant revoking the Schedule A exception. The Agency argues that to the extent that the Union is claiming that conditions no longer exist that warrant the Schedule A exception, such arguments are more appropriately raised in the Union's petition to OPM to revoke the Agency's excepted service appointment authority and provide no basis for finding the award deficient.

The Agency maintains that the Arbitrator properly evaluated the evidence and that the Union's arguments to the contrary provide no basis for finding the award deficient. In particular, the Agency asserts that the Arbitrator correctly concluded that the 1978 CSC letter concerned the use of two excepted 700-hour appointments and not a conversion to a competitive service summer appointment. The Agency also asserts that the award does not conflict with FPM chapter 213. The Agency notes that the prohibition against the combination or conversion of appointments relates only to "[s]ome authorities." Agency's Opposition at 19 (quoting FPM chapter 213, Appendix A-2f). The Agency maintains that its appointment authority prohibits only conversions under another excepted appointment and that, consequently, its conversions of intermittent employees to competitive service summer appointments are not prohibited by FPM chapter 213.

The Agency argues that the Arbitrator properly rejected the Union's reliance on Agency personnel guidance. In particular, the Agency asserts that the Arbitrator properly rejected reliance on Policies and Procedures Manual Supplement No. VIII-51300-01. The Agency maintains that, as found by the Arbitrator, the manual was issued by a region that was dissolved 10 years ago and that the manual is considered to be void. The Agency further maintains that, in any event, the Arbitrator properly concluded that Agency guidance cannot override the opinion of OPM that the Agency's disputed practice was consistent with its appointment authority.

With respect to the Arbitrator's reliance on the opinion of OPM's Chief of Staffing, the Agency contends that the Union fails to establish that such reliance was contrary to law. In the Agency's view, the Union's contention constitutes nothing more than disagreement with the Arbitrator's evaluation of the evidence. In particular, the Agency asserts that Parker provides no support for precluding the Arbitrator's consideration of the opinion. The Agency maintains that Parker is distinguishable for several reasons: (1) in this case, unlike Parker, where OPM was a party to the litigation, OPM was a disinterested third party; and (2) in this case, unlike Parker, where OPM's regulations were inconsistent, OPM's opinion was consistent with the plain language of the exception. The Agency further argues that the Arbitrator appropriately applied Parker by refusing to grant the opinion the usual deference accorded such determinations. The Agency reiterates its arguments that FPM chapter 213 and the 1978 CSC letter provide no support for the Union's position that the Arbitrator could not rely on the opinion. The Agency also asserts that even if the Arbitrator improperly relied on the opinion, his award is primarily based on the plain language of the exception and that the Union provides no basis on which to find that reliance deficient.

The Agency disputes the Union's contention that the Arbitrator abdicated his responsibility to adjudicate its claims with regard to the appropriate relief. The Agency emphasizes that the Arbitrator did not abdicate his responsibility because he expressly determined that there was no violation of its appointment authority and that, therefore, no relief was appropriate.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the Arbitrator's interpretation of the Agency's excepted service appointment authority is deficient.

The Arbitrator determined that the Agency's practice of combining an excepted service appointment with a competitive service summer appointment did not violate the 700-hour service limitation of the Agency's excepted service appointment authority set forth in Schedule A, Section 213.3105(b)(5). The Arbitrator found that the plain language of the appointment authority provided that the Agency was barred only from combining an appointment under the 700-hour excepted service appointment authority with an appointment under another excepted service appointing authority. He also found that this interpretation of the appointment authority was consistent with the opinion of OPM's Chief of Staffing. Accordingly, the Arbitrator denied the grievances on this issue. We find that the Union's exception provides no basis for finding this award deficient.

In our view, the Union's exception constitutes nothing more than an attempt to relitigate the merits of this matter before the Authority. Although the Union has filed an extensive brief in support of its exception, for the most part it merely reiterates its position before the Arbitrator that the Agency's appointment authority precluded any combination with another appointing authority that would exceed the 700-hour limitation in a service year. The Arbitrator addressed and rejected virtually every argument raised in the Union's exception and their reiteration provides no basis for finding the award deficient.

In addition, we have repeatedly advised that it is the province of the arbitrator to evaluate the weight and the relevancy of the evidence in the course of resolving the merits of the dispute submitted to arbitration and that, consequently, exceptions that constitute nothing more than disagreement with the arbitrator's evaluation of the evidence provide no basis for finding the award deficient. For example, American Federation of Government Employees, Local 3947 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Medical Center, Rochester, Minnesota, 47 FLRA 1364, 1372 (1993) (AFGE, Local 3947). In this case, the Arbitrator evaluated the evidence and was clearly persuaded by the plain language of the Schedule A exception and the opinion of OPM's Chief of Staffing. In our view, the Union's arguments that the award is deficient because the record before the Arbitrator, including the 1978 CSC letter and Agency personnel manuals and guidance, support its interpretation of the Agency's appointment authority constitute nothing more disagreement with the Arbitrator's evaluation of the evidence in concluding to the contrary and provide no basis on which to find the award deficient. See id. Moreover, in view of the plain language of the appointment authority and the opinion of OPM's Chief of Staffing, we find that the Union fails to establish that, as a matter of law, the mere action of having been granted an exception to competitive appointments prohibited the Agency from converting 700-hour, excepted service, intermittent customs inspectors to seasonal competitive service positions as customs inspectors under the summer employment program.

We also find that FPM chapter 213, Appendix A provides no basis for finding the award deficient. FPM chapter 213, including Appendix A, was abolished effective December 31, 1993. FPM Sunset Document, Chapter Summary Sheets at 17. In these circumstances, the Authority has recognized the principle of administrative law that, in general, agencies must apply the law in effect at the time a decision is made, even when the law has changed during the course of a proceeding. U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Federal Employees Metal Trades Council, 49 FLRA 802, 811 (1994) (quoting Aaacon Auto Transport v. ICC, 792 F.2d 1156 (D.C. Cir. 1986)). In this case, we can perceive no basis for not giving effect to the abolishment of FPM chapter 213 and denying the Union's contention on the basis of the abolishment of the chapter on which it relies. See id. Moreover, to the extent that the Union is arguing that the prohibition of FPM chapter 213, Appendix A merely restated the general policy of OPM, we agree with the Arbitrator and the Agency that the policy is one that permits OPM, when granting an exception, to limit a combination of the excepted appointment with a competitive appointment. However, as found by the Arbitrator on the basis of the plain language of the Agency's exception, OPM's predecessor agency (the Civil Service Commission) chose only to limit the Agency from combining this exception with another excepted service appointment authority.

We reject the Union's contention that the Arbitrator violated law by relying on the opinion of OPM's Chief of Staffing. We agree with the Agency that the Arbitrator properly applied Parker when he refused to grant the OPM opinion the usual deference accorded such determinations and scrutinized the opinion in determining what weight to give to it. On the basis of the distinctions noted by the Agency between this case and the circumstances in Parker, we are not persuaded that Parker precluded any reliance by the Arbitrator on the opinion. Because we find no violation of law in the Arbitrator's reliance on the opinion, we view the Union's arguments relating to the Arbitrator's reasons for finding the opinion to be highly probative to again constitute disagreement with the Arbitrator's evaluation of the evidence and to provide no basis on which to find the award deficient. See AFGE, Local 3847, 47 FLRA at 1372. Furthermore, as noted by the Agency, the Arbitrator primarily relied on the plain language of the Agency's appointment authority in denying the grievances. Thus, even if we were to agree with the Union that the Arbitrator should not have relied on the opinion, the Union has provided no basis for finding deficient the Arbitrator's separate reliance on the language of the appointment authority in denying the grievances.

Finally, we also reject the Union's claim that the Arbitrator was unduly influenced by the revocation process before OPM and abdicated his responsibility to adjudicate the Union's claims that the Agency's practice was contrary to 5 U.S.C. § 3302. We agree with both the Arbitrator and the Agency that the Union's arguments that the Agency used intermittent employees in a manner that no longer justified an exception to competitive appointments were arguments concerning whether OPM should continue to authorize the excepted service authority because competition was still impracticable. They were not arguments that addressed the issue, decided by the Arbitrator, of whether the intermittent employees appointed under the Schedule A exception could be converted to seasonal employees in competitive service positions under the summer employment program. Thus, we find that the Arbitrator resolved the relevant issue of the propriety of the Agency's conversion practice and properly rejected the Union's arguments that instead addressed the propriety of the Schedule A exception itself. In our view, he appropriately advised the Union that these arguments and relief, which essentially requested that the Schedule A exception be revoked, were more appropriately addressed to OPM, and such advice provides no basis for finding the award deficient.

In summary, we find no basis on which to find deficient the Arbitrator's denial of the grievances regarding the appointment of intermittent employees, and we will deny the Union's exception.

IV. Second Exception

A. Positions of the Parties

1. The Union

The Union contends that the Arbitrator's denial of the grievances on the use of seasonal employees is contrary to FPM chapter 316. The Union maintains that FPM chapter 316, which pertains to temporary limited appointments, such as summer employment, expressly limits the use of temporary limited appointments to situations where "there will be no permanent need for the employee." Union's Exceptions at 39 (quoting FPM chapter 316, subchapter 2-2). The Union argues that the uncontradicted record in this case demonstrates that at one location the Agency is using seasonal employees to meet permanent staffing needs and that, consequently, the Arbitrator's determination that their use was appropriate is deficient.

2. The Agency

The Agency contends that the Union's exception provides no basis for finding the award deficient. The Agency claims that the Arbitrator clearly found that the record did not demonstrate that the summer inspectors were being used to meet permanent staffing needs and that the Union's claim to the contrary constitutes mere disagreement with the Arbitrator's evaluation of the evidence. The Agency asserts that the Arbitrator properly interpreted the FPM when he ruled that it was not the kind of work that determines compliance with FPM chapters 316 and 332, but rather whether the work was performed to meet a seasonal demand.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the Arbitrator's denial of the grievances on the issue of the use of seasonal employees is contrary to FPM chapter 316.⁽¹⁾

The Arbitrator found that the Agency properly used summer employees because they were hired for, and performed work related to meeting, seasonal demands. He rejected the claim of the Union that the Agency was using summer employees to fill permanent staffing needs in violation of FPM chapter 316. He ruled that what determines compliance with FPM chapter 316 is whether the work is performed to meet seasonal demands. Finding that the Agency had used summer hires to address the seasonal demand of customs inspections and noting that the FPM grants considerable discretion to agencies in their use of summer hires, the Arbitrator ruled that the Agency's use of seasonal employees complied with FPM chapter 316. We find that the Union in its exception fails to establish otherwise.

FPM chapter 316, subchapter 2-2 provides that temporary limited appointments are appropriate for meeting a range of staffing needs when the agency expects there will be no permanent need for the employee and that the agency has the basic authority to make this determination. As an example of an appropriate use of a temporary limited appointment, subchapter 2-2b(5) lists "hiring temporary employees to perform recurring seasonal work which the agency expects to last less than 6 months in a year." However, subchapter 2-2c provides that temporary appointments are appropriate only when there is reason to expect that there will be no permanent need for the employee. In our view, the Union fails to establish that the award is inconsistent with any portion of FPM chapter 316, subchapter 2-2. The Arbitrator's finding that the Agency clearly used seasonal employees to address the seasonal demand of customs inspections during the summer is a use specifically approved in subchapter 2-2b and is not, either generally or specifically, a use identified in subchapter 2-2c as inappropriate. Moreover, the Arbitrator specifically found that the Agency was not using seasonal employees to meet permanent staffing needs. Thus, we find that the Union's assertion that the uncontradicted record in this case demonstrates that the Agency was using seasonal employees to meet permanent staffing needs fails to establish that the award is contrary to FPM chapter 316, subchapter 2-2, and we will deny the exception. See National Treasury Employees Union, Chapter 68 and U.S. Department of the Treasury, Internal Revenue Service, Andover Service Center, 48 FLRA 1329, 1334 (1994) (union failed to establish that the agency's use of seasonal employees was inconsistent with the FPM); U.S. Department of the Air Force, Langley Air Force Base, Hampton, Virginia and National Association of Government Employees, Local R4-106, 41 FLRA 246, 249 (1991) (Langley Air Force Base) (union's exception constituted nothing more than disagreement with the arbitrator's findings of fact in conjunction with his application of the FPM and provided no basis for finding the award contrary to the FPM).

V. Third Exception

A. Positions of the Parties

1. The Union

The Union "except[s] to the Arbitrator's . . . conclusion that [the Agency] may bring itself into compliance with FPM 340 by eliminating advance schedules for the intermittents, but continuing to use the 'intermittent' employees to perform predicable work that has been pre-scheduled." Union's Exceptions at 5 n.2.

2. The Agency

The Agency contends that the Union's conclusionary allegation should be denied for failing to establish in what manner the award is deficient. The Agency argues, contrary to the Union's exception, that the Arbitrator considered the provisions of FPM chapter 340 on the use of intermittent employees and correctly concluded that, under the terms of the chapter, the Agency had not been misusing intermittent employees since April 1991.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the Arbitrator's denial of the grievances on the issue of the Agency's use of intermittent employees since April 1991 is contrary to FPM chapter 340.⁽²⁾

FPM chapter 340, subchapter 4-1b provides that intermittent employment is not appropriate for a position that could be filled by a regularly scheduled, part-time or full-time employee. The Arbitrator found that although the work of intermittent employees was generally predictable, the work was not appropriate for part-time or full-time employees and that, therefore, the Agency's use of intermittent employees since April 1991, when the Agency stopped prescheduling intermittent employees, complied with FPM chapter 340. The Union's conclusionary contention to the contrary in its exception fails to establish otherwise.

In our view, the Union's contention constitutes nothing more than disagreement with the Arbitrator's factual finding, on which he based his ruling of compliance with FPM chapter 340, that the work performed by intermittent employees was not appropriate for part-time or full-time employees Therefore, we conclude that the Union provides no basis for finding the award contrary to FPM chapter 340, subchapter 4. See Langley Air Force Base, 41 FLRA at 249 (union's exception constituted nothing more than disagreement with the arbitrator's findings of fact in conjunction with his application of the FPM and provided no basis for finding the award contrary to the FPM). Accordingly, we will deny the Union's exception.

VI. Decision

The Union's exceptions are denied.

APPENDIX

FPM chapter 316, subchapter 2-2 pertinently provides as follows:

a. Temporary limited appointments are appropriate for meeting a range of staffing requirements when the agency expects there will be no permanent need for the employee. Agencies have basic authority to make this determination, but must document the reason for it on the appointment action; see section 2-12.

b. Examples of appropriate use include:

. . . .

(5) hiring temporary employees to perform recurring seasonal work which the agency expects to last less than 6 months in a year. . . .

c. Temporary appointments are intended to meet legitimate non-permanent staffing needs, as determined by the agency. They are appropriate, however, only when there is a reason to expect that there will be no permanent need for the employee. The use of temporary limited appointments for other reasons is inappropriate and is not authorized. Examples of inappropriate use are:

(1) hiring temporary employees to avoid the costs of employee benefits or ceilings on permanent employment levels;

(2) using temporary employment as a "tryout" or trial period prior to permanent appointment (except where specifically authorized for severely disabled or mentally restored employees);

(3) circumventing the competitive examining process by appointing an individual on a temporary basis because that individual is not within reach for permanent appointment;

(4) refilling positions which, over the preceding 4 years, have been filled continuously on a temporary basis.

FPM chapter 340, subchapter 4-1 pertinently provides as follows:

b. Appropriate use. An intermittent work schedule is appropriate for a position in which the nature of work is sporadic and unpredictable so that a tour of duty cannot be regularly scheduled in advance. Intermittent employment is not appropriate for a position which could be filled by a regularly scheduled, i.e., part-time or a full-time employee. . . .

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Unlike FPM chapter 213, portions of FPM chapter 316 have not been abolished, but have been provisionally retained, including subchapter 2, which pertains to temporary limited appointments, such as appointments under a summer employment program. FPM Sunset Document, Chapter Summary Sheets at 42. The relevant portions of FPM chapter 316 are set forth in an appendix to this decision.

2. Unlike FPM chapter 213, portions of FPM chapter 340 have not been abolished, but have been provisionally retained, including subchapter 4, which pertains to intermittent employment. FPM Sunset Document, Chapter Summary Sheets at 53. The relevant portions of FPM chapter 340 are set forth in an appendix to this decision.

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