United States, Department of the Treasury, Internal Revenue Service (Agency) and National Treasury, Employees Union, Chapter 66 (Union)

[ v59 p34 ]

59 FLRA No. 8

UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
CHAPTER 66
(Union)

0-AR-3506

_____

DECISION

August 15, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

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

      The Arbitrator found that the Agency violated the parties' collective bargaining agreement by denying official time to Union representatives. For the reasons that follow, we deny the Agency's exceptions.

II.      Background and Arbitrator's Award

      The Union filed an institutional grievance, which alleged that during March and April 2001, the Agency violated the parties' agreement by denying official time to union representatives. The grievance also alleged that the Agency's actions constituted unfair labor practices under § 7116(a)(1) and (8) of the Statute. The grievance was not resolved and was submitted to arbitration on the following stipulated issues:

1.      Whether the Agency violated . . . Article 9, Section 2 when it denied official time and bank time to [the Chief Steward] on various dates in March and April 2001. . . .
2.      Whether the Agency violated . . . Article 9, Section 2 when it denied official time and bank time to [certain] stewards . . . during March and April 2001. . . .
3.      Whether the Agency's actions . . . violated 5 U.S.C. § 7116(a)(1)                and (8). . . .

Award at 2-3.

      The Arbitrator explained that the parties' agreement provides for two categories of official time: "official time" and "bank time." He stated that, under the agreement, "official time" is for attendance at certain meetings with the Agency, while "bank time" is used for "activities associated with the maintenance of an effective labor-management relationship." Id. at 7-8 (quoting Article 9, Section 2F). The Arbitrator noted that the parties were in agreement that the Agency has the right under Article 9, Section 2P to impose restrictions on the release of union representatives on official time and bank time. [n1]  He further found that resolution of the grievance depended on the interpretation of Section 2P and whether the Agency met its obligation with respect to the specified stewards during the time period in dispute.

      The Arbitrator interpreted Section 2P to obligate the Agency to grant requests for official time and release union stewards from duty to perform union activities on official time or bank time "unless reasonable efforts have first been made to augment and reassign staff, including unit managers, in order to grant such requests and, despite such reasonable efforts, the presence of the requesting union stewards at their work stations is essential to the performance of the Agency's responsibilities." Id. at 31.

      Applying this interpretation of Section 2P, the Arbitrator ruled that the Agency had violated the agreement when it denied official time to the Chief Steward and official time and bank time to certain stewards on various dates between March 15 and April 15, 2001. Accordingly, to this extent, he sustained the grievance. He denied the grievance to the extent that the Union had claimed that the Agency's actions constituted unfair labor practices. [n2]  [ v59 p35 ]

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the award, to the extent that it sustained the grievance, is deficient because it is contrary to law, fails to draw its essence from the parties' collective bargaining agreement, and is based on a nonfact.

      The Agency argues that the award is contrary to law because it is contrary to management's right to assign work under § 7106(a)(2)(B) of the Statute. The Agency acknowledges that the Authority has determined that § 7131(d) of the Statute carves out an exception to management's § 7106(a) rights, and that under this exception matters pertaining to the allocation and scheduling of official time are subject to bargaining. However, the Agency asserts that the award is not subject to this exception because the award "goes far beyond scheduling." Exceptions at 5. The Agency maintains that the award does not simply state either that the Agency failed to release stewards when workload did not prevent this or that the Agency must make reasonable efforts to reassign staff to accommodate stewards. In the Agency's view, the award, instead, requires the Agency to take the "extraordinary measures" of first assigning this work to any and all other personnel, including unit managers. Id. at 5-6. The Agency argues that like the proposal the Authority found to be nonnegotiable and outside the "carve-out" exception in National Association of Agriculture Employees, 48 FLRA 1323 (1994) (NAAE), the award imposes a substantive condition on management's ability to assign work.

      The Agency also argues that the award abrogates management's right to assign work because it completely deprives the Agency of its right to fully address its workload needs and to determine the appropriate personnel to whom work should be assigned. [n3]  The Agency asserts that by preventing the Agency from meeting its paper and phone workload needs contemporaneously, the award abrogates management's right to determine when this work needs to be performed.

      The Agency also contends that the award is contrary to law because it directly regulates the conditions of employment of supervisory personnel. The Agency acknowledges that such matters are permissive subjects of bargaining, but maintains that it "never agreed to such bargaining." Id. at 10 (emphasis in original). The Agency argues that because it never elected to engage in such bargaining, the Arbitrator's imposition of such terms without the Agency's consent is contrary to law.

      The Agency argues that the award fails to draw its essence from the agreement because it "ignores the plain language of the agreement." Id. The Agency notes that Article 9, Section 2P specifically provides that stewards will be released "provided their work requirements or work schedules do not prohibit release." Id. at 11 (quoting with added emphasis Section 2P). The Agency claims that "[l]ogically, `their' can only refer to the stewards and/or the stewards' managers." Id. The Agency maintains that the Arbitrator focused on the entire accounts management division and by doing so imposed a higher standard of release than imposed by Section 2P's plain language.

      Finally, the Agency argues that the award is based on a nonfact because the Arbitrator assumed that the specified stewards will never be responsible for the Agency's paper workload. The Agency maintains that it is in transition and employee responsibilities are changing. The Agency asserts that by speaking prospectively based on this erroneous assumption, the award prohibits the Agency from considering its paper workload when determining in the future whether to release a steward on official time.

B.     Union's Opposition

      The Union contends that the Agency provides no basis for finding the award deficient.

      The Union asserts that the award is not contrary to management's right to assign work under § 7106(a)(2)(B) because it enforces a contractual provision concerning official time negotiated under § 7131(d) of the Statute. The Union maintains that the award is subject to the "carve-out" exception because it concerns the allocation and scheduling of official time and the Agency does not assert the existence of an emergency or other special circumstances. The Union claims that the Agency's reliance on NAAE is misplaced because the proposal did not concern the conditions under which union representatives would be released from duties on official time. The Union argues that even if the carve-out exception does not apply, the award does not abrogate the exercise of management's right to assign work. [ v59 p36 ]

      The Union also asserts that the award does not fail to draw its essence from the agreement and is not based on a nonfact. The Union argues that the Agency's attribution of a different meaning to the word "their" in Section 2P of the agreement does not meet any of the Authority essence standards. The Union also argues that contrary to the claim of the Agency, the award does not contain any factual finding about the size or composition of the Agency's future workload. Thus, the Union maintains that the award is not based on an erroneous finding about the Agency's future workload.

IV.      Analysis and Conclusions

A.     The award is not contrary to § 7106 of the Statute.

      The Authority reviews questions of law raised by an exception to an arbitrator's award de novo. See NTEU Chapter 24, 50 FLRA 330 332 (1995). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE Local 1437, 53 FLRA 1703, 1710 (1998).

      Section 7131(d) of the Statute carves out an exception to management's rights under § 7106(a) of the Statute, absent emergency or other special circumstances. See NTEU, 52 FLRA 1265, 1282-88 (1997); United States Dep't of Def., Army and Air Force Exchange Serv., 51 FLRA 1371, 1374 (1996) (Chair Segal concurring in part and dissenting in part) (AAFES); NTEU, 45 FLRA 339, 346-48 (1992) (BATF). The exception applies to matters of amount, allocation, and scheduling of official time. See AAFES, 51 FLRA at 1374.

      The Agency argues that the "carve-out" exception does not apply to the award in this case because the award "goes far beyond scheduling." Exceptions at 5. The Agency asserts that Section 2P, as interpreted and applied by the Arbitrator, is like the proposal in NAAE, which the Authority found to be outside the exception and nonnegotiable.

      We conclude that the Agency has provided no basis for finding the award deficient. Section 2P, as interpreted and applied by the Arbitrator, concerns the scheduling of official time. See, e.g., BATF (provision 6); AFGE, AFL-CIO, Local 2354, 30 FLRA 1130 (1988) (provision 2). The Agency's reliance on NAAE is misplaced. The proposal in NAAE imposed a substantive condition on assigning work to the union president, but the proposal did not concern official time under § 7131(d).

      Therefore, we reject the Agency's argument that the "carve-out" exception does not apply to the award in this case. [n4]  Accordingly, we deny the Agency's exception.

B.      The award is not deficient on the ground that it concerns supervisors.

      Matters which implicate the working conditions of managers and supervisors are a permissive subject of bargaining. See, e.g., AFGE Local 3302, 52 FLRA 677, 680-82 (1996) (Member Armendariz concurring). An agency is fully empowered to bargain over, and to choose to agree to, a contract proposal that directly implicates the working conditions of its supervisors and managers. See id. at 681-82. Accordingly, an arbitrator's interpretation and enforcement of a contract provision may directly determine the working conditions of a manager or supervisor. As the Authority has held,

although bargaining over proposals that directly implicate conditions of employment of supervisors is permissive rather than prohibited, "[o]nce an agency and a union agree to such a proposal, it is enforceable provided that it is otherwise consistent with the Statute."

United States Dep't of Def., Def. Commissary Agency, Fort Lee, Va., 56 FLRA 855, 859 (2000) (quoting AFGE Local 3302, 52 FLRA at 682).

      In this case, the Arbitrator interpreted Article 9, Section 2P to obligate the Agency to grant requests for official time and release stewards from duty to perform union activities on official time or bank time unless reasonable efforts had been made to augment or reassign staff, including unit managers, in order to grant such requests. Including the augmentation and reassignment of managerial staff as part of a reasonable effort to grant requests for official time is a permissive subject of bargaining, and, once agreed to by the parties, was fully enforceable by the Arbitrator. As the Arbitrator was simply enforcing such a contractual election to bargain, the award is not contrary to law. See Soc. Sec. Admin., Baltimore, Md., 55 FLRA 1063, 1069 (1999).

      The Agency argues that it never agreed to such a provision and imposing such terms on it without its consent is contrary to law. However, disagreement with the Arbitrator's interpretation of Section 2P does not establish that imposition of that interpretation conflicts with the Agency's right to choose not to bargain over such matters. See id. When the parties submitted the issue of [ v59 p37 ] the Agency's obligations under Section 2P to arbitration, it was the Arbitrator's construction of the agreement for which they bargained. See id. The Agency cannot now challenge that interpretation on the grounds that it is contrary to its election not to bargain. Instead, such a challenge must be raised as an exception that the interpretation fails to draw its essence from the agreement. Cf. Dep't of the Treasury, United States Customs Serv., 37 FLRA 309 (1990) (exceptions which contend that an arbitrator's enforcement of the agreement is contrary to management rights under § 7106 are resolved on the basis of the contract provision, as interpreted and applied by the arbitrator; if the appealing party disputes that interpretation, the grounds for review need to be essence). However, the Agency does not challenge this aspect of the Arbitrator's interpretation of Section 2P on the ground that it fails to draw its essence from the agreement (although, as discussed below, it challenges another aspect of the Arbitrator's interpretation of Section 2P on the ground that it fails to draw its essence from the agreement). Accordingly, we deny the Agency's exception.

C.     The award does not fail to draw its essence from the agreement.

      To establish that an award fails to draw its essence from the agreement, the appealing party must establish that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason or fact and so unconnected with wording and purposes of the collective bargaining agreement so as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      Article 9, Section 2P provides: "Stewards and employees wishing to use time under this article will check with their managers and will be released provided their work requirements or work schedules do not prohibit release." The Agency claims that the Arbitrator disregarded the word "their" and imposed a higher standard of release than imposed by the plain language of Section 2P.

      The Agency fails to establish that the Arbitrator disregarded the agreement or that the award is irrational, implausible or unfounded. The Arbitrator interpreted the language of Section 2P to require reasonable efforts to augment and reassign staff in order to release stewards. In our view, this constitutes the Arbitrator's interpretation of the word "their." As interpreted by the Arbitrator, the work requirements of union representatives will prohibit their release when reasonable efforts to augment and reassign staff fail to provide substitute personnel and the presence of the representatives at their work stations is essential. In addition, the Agency fails to establish that the Arbitrator imposed a higher standard on the Agency than imposed by the plain language of Section 2P.

      Accordingly, we deny this exception.

D.     The award is not based on a nonfact.

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See, e.g., Soc. Sec. Admin., Office of Hearings and Appeals, 58 FLRA 405 (2003) (SSA). The Agency asserts that the award is deficient because the Arbitrator assumed that the specified stewards would never be responsible for the Agency's paper workload.

      The Agency has not established that the Arbitrator made such an assumption. Instead, the Arbitrator sustained the grievance on the basis of his finding that as to the official time requests of the specified stewards for the time period in dispute, the Agency had not made reasonable efforts to augment or reassign staff in order to grant the requests. Accordingly, we deny this exception. See SSA (nonfact exception denied because the arbitrator did not make the finding alleged to constitute a nonfact).

V.      Decision

      The Agency's exceptions are denied.



Footnote # 1 for 59 FLRA No. 8 - Authority's Decision

   Article 9, Section 2P pertinently provides:

      Stewards and employees wishing to use time under this article will check with their managers and will be released provided their work requirements or work schedules do not prohibit release.


Footnote # 2 for 59 FLRA No. 8 - Authority's Decision

   No exceptions were filed to this portion of the award.


Footnote # 3 for 59 FLRA No. 8 - Authority's Decision

   After the Agency filed its exceptions, the Authority held in United St