National Treasury Employees Union, Chapter 68 (Union) and U.S. Department of the Treasury, Internal Revenue Service, Andover Service Center (Agency)

[ v57 p256 ]

57 FLRA No. 52

NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 68
(Union)

and

U.S. DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
ANDOVER SERVICE CENTER
(Agency)

0-AR-3380

_____

DECISION

June 7, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members

Decision by Member Pope for the Authority

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Arnold M. Zack filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the exceptions.

      For the reasons that follow, we find that the Union has failed to establish that the award is deficient under § 7122(a) of the Statute. Accordingly, we deny the exceptions.

II.     Background and Arbitrator's Award

      The Agency advised the Union that it intended to reassign certain night-shift employees to the day shift. The Agency refused the Union's request to bargain over the shift change, stating that the change was permitted under Article 15, Section 2A of the parties' agreement. [n1] 

      The Union filed a grievance alleging that the Agency's failure to bargain constituted an unfair labor practice (ULP). When the parties failed to resolve the grievance, it was submitted to arbitration. The Arbitrator did not explicitly set forth a statement of issues, but stated that [t]he outcome of this case rests on whether the [Agency] was obligated to negotiate with the Union on the shift change, and the answer to that question lies in determining whether the parties' agreement requires the negotiation of such shift changes. [n2]  Award at 6.

      The Arbitrator determined that the Agency violated the parties' agreement when it failed to bargain with the Union over the shift changes as required by Article 23." [n3]  Award at 8. Accordingly, the Arbitrator sustained the grievance and directed that the grievants be made whole for lost earnings and benefits. The Arbitrator did not address the Union's request for a status quo ante remedy.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union argues that the Arbitrator erred by not granting a status quo ante remedy because, according to the Union, only a status quo ante remedy will remedy the Agency's failure to bargain. The Union also argues that the award must conform to the Authority's decision in United States Dep't of the Treasury, IRS, 56 FLRA 906 (2000), and the administrative law judge's decision in Dep't of the Treasury, IRS, Kan. City Serv. Ctr., Kan. City, Mo., 57 FLRA No. 33 (2001) (Kan. City Serv. Ctr.). [n4]  Exceptions at 5. The Union notes that the award is partially inconsistent with the Arbitrator's findings of fact, and that the award may simply require further clarification. Id. at 1.

B.     Agency's Opposition

      The Agency argues that the award is not deficient. According to the Agency, Article 43, Section 4.A.8 of the parties' agreement sets forth the Arbitrator's remedial authority, and arbitration awards will not be found deficient simply because a party seeks to have its desired remedy substituted for the remedy granted by the arbitrator. [n5]  In addition, the Agency contends that an arbitrator is not required to adopt a remedy that might be [ v57 p257 ] appropriate in a ULP setting as a disposition of a contractual dispute that has ULP overtones. Opposition at 8 (citing AFGE, Council 215, Nat'l Council of Soc. Sec. Admin., OHA Locals, 46 FLRA 1518 (1993) (AFGE, Council 215)).

IV.     Analysis and Conclusions

      The Arbitrator found that the Agency's failure to bargain violated the parties' agreement, and did not address whether that failure violated the Statute. [n6]  The Authority has held that arbitrators have great latitude in fashioning remedies for contract violations. AFGE, Council 215, 46 FLRA at 1524. In AFGE, Council 215, the Authority rejected the union's assertion that the arbitrator was required to grant a status quo ante remedy, holding that nothing in Fed. Corr. Inst., 8 FLRA 604 (1982), which addresses status quo ante remedies for refusals to bargain over impact and implementation matters under the Statute, compelled the issuance of a status quo ante remedy . . . where the [a]rbitrator found a violation of the parties' agreement. AFGE, Council 215, 46 FLRA at 1523. The Authority noted that the union failed to establish that the parties' agreement required a status quo ante remedy. Id. at 1524.

      As in AFGE, Council 215, the Arbitrator here found only that the Agency's refusal to bargain violated the parties' agreement; the Arbitrator did not address whether, or find that, the refusal violated the Statute. Therefore, consistent with AFGE, Council 215, there is no basis to conclude that the Arbitrator was required under the Statute to impose a status quo ante remedy. For the same reason, the Union's reliance on Kan. City Serv. Ctr. and IRS is misplaced. Both of those decisions involved refusals to bargain as required by the Statute -- not as required by a collective bargaining agreement. We note, in addition, that there was no status quo ante remedy in IRS.

      The Union does not assert that the parties' agreement required the Arbitrator to issue a status quo ante remedy, and in fact, Article