United State, Department of the Treasury, Internal Revenue Service (Agency) and National Treasury Employees Union, Chapters 22, 34, & 60 (Union)

[ v61 p168 ]

61 FLRA No. 33

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

and

NATIONAL TREASURY
EMPLOYEES UNION
CHAPTERS 22, 34, & 60
(Union)

0-AR-3942

_____

DECISION

August 23, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Roger P. Kaplan filed by the Agency under § 7122 of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The National Treasury Employees Union (NTEU) filed an opposition to the Agency's exceptions. [n2] 

      The Arbitrator found that the Agency repudiated a national agreement concerning the tax-filing season (national filing-season agreement) by implementing local memoranda of understanding (local MOUs) that did not include provisions regarding time-off awards. [n3] 

      For the following reasons, we set aside the award.

II.     Background and Arbitrator's Award

      Each year, during tax-filing season, the Agency needs additional customer service representatives. To this end, NTEU and its local Chapters annually negotiate national and local agreements with the Agency to facilitate assignment of non-customer service employees to customer service positions.

      For the 2000 tax-filing season, NTEU and the Agency negotiated a national filing-season agreement that provided for local negotiations over a variety of matters. For the 2001 tax-filing season, NTEU and the Agency negotiated a new national filing-season agreement, which left in place provisions of the previous national filing-season agreement that were not "explicitly modified by" the new national filing-season agreement. Exceptions, Attachments, Jt. Ex. 7 at 1. Subsequently, the Agency and the local Chapters entered into local MOUs for the 2001 tax-filing season, which provided for time-off awards to non-customer-service employees who volunteered to work in customer service positions during tax-filing season. [n4] 

      For the 2002 tax-filing season, NTEU and the Agency entered into a new national filing-season agreement that did not contain any relevant changes to the previous, 2001 national filing-season agreement. During the negotiation of local MOUs for the 2002 tax season, the Agency claimed that time-off awards for volunteers violated the parties' national collective bargaining agreement (the national CBA) "and the law." [n5]  Award at 6. The parties employed the assistance of an arbitrator and ultimately entered into a settlement agreement [ v61 p169 ] that provided a formula for determining time-off awards for volunteers.

      Thereafter, the parties agreed, in Article 18 of a national CBA that became effective July 1, 2002, that time-off awards would be provided on the basis of volunteers' "performance." [n6]  Id. at 13. Subsequently, NTEU and the Agency entered into a national filing-season agreement for the 2003 tax-filing season, which, according to the Arbitrator [n7] , stated that prior national filing-season agreements remained in effect unless explicitly modified and that prior local agreements remained in effect unless modified by the new national filing-season agreement or by local negotiations. See id. at 6.

      Subsequently, during negotiations for the 2003 tax-filing season, the local Chapters proposed to retain time-off awards for volunteers. The Agency declared that time-off awards were inconsistent with law and with Article 18, Section 4B of the national CBA. The parties again utilized the services of an arbitrator, but the Agency did not accept the arbitrator's recommendation to continue to apply the time-off award provisions from the 2002 filing-season settlement agreement. The Agency's Territory Manager informed the local Chapters that the Agency would implement other agreed-upon provisions of the local 2003 MOUs, but would not include a provision regarding time-off awards.

      The Union filed grievances alleging, as relevant here, that the Agency failed to comply with the 2003 national filing-season agreement when it failed to offer time-off awards as incentives for volunteers during that season. The grievances were unresolved and were submitted to arbitration, where the parties stipulated the pertinent issues as follows:

Was the Union proposal during local negotiations regarding the 2003 filing season to give mandatory time off awards to volunteers negotiable? . . . .
Did the . . . letter signed by [the Agency's] Territory Manager[] violate the parties' [national filing-season agreements], and/or Article 47, Section 4 of the National [CBA] and/or 5 USC 7116(a)(1) and (5). If so, what shall the remedy be?[ [n8] ]

Id. at 2. [n9] 

      The Arbitrator held that "[a] volunteer makes a personal effort by volunteering[,]" and that "[b]y volunteering to assist with customer service during the filing season, an employee contributes to the efficiency of government operations by allowing the [Agency] to have a willing employee interacting with the public, rather than an employee who was detailed with no desire to be in that position." Id. at 10-11. In this regard, the Arbitrator specifically rejected the Agency's argument that "merely volunteering was not sufficient to make an employee eligible for a [time-off award] under the law[,]" finding that employees were entitled to time-off awards for merely "volunteering[.]" Id. at 11 12. The Arbitrator determined that time-off awards "would increase the quality of work life for all employees by not forcing employees to work where they lacked a desire to do so[,]" and that co-workers, supervisors, and the public would benefit because they "would not have to work with potentially disgruntled employees[.]" Id. at 12. Therefore, the Arbitrator found that the Union's proposal for time-off awards was consistent with 5 U.S.C. § 4502(e), 5 C.F.R. § 451.104(a), and Authority case law, because it would allow time-off awards only for personal effort that contributes to the efficiency of the government. [n10] 

      Turning to the parties' national CBA, the Arbitrator rejected the Agency's claim that Article 18, Section 4B of that CBA precludes local negotiations over the time-off awards proposed by the Union. In this regard, the Arbitrator found that the previous national CBA had stated that the Agency agreed to grant time-off awards to unit employees, and that the words "on the basis of [ v61 p170 ] their performance" were added during negotiations of the national CBA that went into effect in 2002. The Arbitrator found that this wording "refers to the need for the employee to do some act to be eligible for a [time-off award], not that the act has to be at a certain level of performance." Id. at 13-14.

      Finally, the Arbitrator found that the 2003 national filing-season agreement specifically provided that local agreements remained in effect unless modified by that filing-season agreement or by local negotiations. The Arbitrator found that the Agency "was unable to modify the local agreements . . . and then refused to negotiate locally concerning [time-off awards]." Id. at 15. The Arbitrator found that the local agreements from the 2001 and 2002 filing seasons therefore remained in effect, and thus, the Agency "is contractually obligated to pay [time-off awards] to volunteers until it successfully negotiates a modification or change to the local agreements." Id. The Arbitrator found that the Agency breached the 2003 national-filing season agreement when it implemented the 2003 local MOU without the provision concerning time-off awards for volunteers. The Arbitrator also found that this breach constituted a repudiation of the 2003 national filing-season agreement and, thus, that the Agency violated § 7116(a)(1) and (5) of the Statute. Accordingly, the Arbitrator sustained the grievance in pertinent part.

III.     Positions of the Parties

A.      Agency Exceptions

      The Agency argues that the Arbitrator's finding of a repudiation in violation of § 7116(a)(1) and (5) is contrary to 5 U.S.C. § 4502(e), 5 C.F.R. § 451.104(a), and Authority precedent. According to the Agency, in order to be entitled to a time-off award, an employee must make a personal effort that contributes to the efficiency, economy, or other improvement of the government, and this "necessarily requires that the volunteers' performance be at a minimally successful level." Exceptions at 11. The Agency claims that a poorly performing volunteer does not contribute to the efficiency of government operations.

      The Agency also argues that the award fails to draw its essence from the national CBA because the Arbitrator erred in finding that Article 18, Section 4B of that CBA does not bar negotiations over the Union's proposal to retain time-off awards for volunteers. Specifically, the Agency claims that "[t]he Arbitrator's narrow interpretation of the words `on the basis of their performance' to . . . not require at least a minimally successful level of performance is inconsistent with the parties' intentions." Id. at 13.

B.      NTEU Opposition

      NTEU claims that the award is not contrary to law. NTEU asserts that the employees must perform customer service work in order to be eligible for a time-off award, and that the Arbitrator correctly determined that volunteers contribute to the efficiency of the government. With regard to the Agency's claim that awards may be granted only if an employee performs at a minimally successful level, NTEU states that "it was deduced at hearing that in order to receive a [time-off award] under the local MOUs, volunteers were required to perform customer service duties at a fully satisfactory level." Opp'n at 15 & 18. Further, NTEU claims that the award draws its essence from the national CBA.

IV.     Analysis and Conclusions

      The Agency argues that the award is contrary to law, specifically, 5 U.S.C. § 4502(e) and 5 C.F.R. § 451.104(a). The Authority reviews questions of law raised by exceptions to an arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). 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). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      Under 5 U.S.C. § 4502(e), agencies are authorized, consistent with OPM regulations, to grant employees, as an incentive award, time off from duty "in recognition of superior accomplishment or other personal effort that contributes to the quality, efficiency, or economy of Government operations." Accord NAGE, Local R1-109, 53 FLRA 271, 273 (1997). OPM regulations provides that agencies may grant time-off awards on the basis of, as relevant here, "[a] suggestion, invention, superior accomplishment, productivity gain, or other personal effort that contributes to the efficiency, economy, or other improvement of Government operations or achieves a significant reduction in paperwork[.]" 5 C.F.R. § 451.104(a)(1).

      Sections 4502(e) and 451.104(a)(1) do not define "superior accomplishment" or "personal effort." NAGE, 53 FLRA at 274. In NAGE, the Authority applied dictionary definitions to hold that "accomplishment" means "the act of accomplishing," and that to "accomplish" means "to execute fully" or "perform, achieve[.]" [ v61 p171 ] 53 FLRA at 274. The Authority also held that "effort" means the "conscious exertion of physical or mental power[.]" Id. Accordingly, the Authority concluded that §§ 4502(e) and 451.104(a)(1) require that an award be based on performance or activity by an employee. Id.

      However, mere performance or activity is not sufficient to warrant a time-off award. In this connection, as noted above, both § 4502(e) and § 451.104(a) require that the performance or activity contribute to the efficiency, economy, or other improvement of Government operations. Performance that is less than minimally successful does not contribute to the efficiency, economy, or other improvement of Government operations. Cf. AFGE, Local 446, 59 FLRA 461, 465 (2003) (Authority found longevity awards contrary to law, noting union's failure to "present any evidence that an employee who continues to be employed by the [a]gency and comes to work without performing in a superior way would not receive this award.")

      Here, the Arbitrator found that employees were entitled to time-off awards for merely volunteering. He did not limit that entitlement to employees who were performing at any particular level. In fact, as noted above, the Arbitrator specifically rejected the Agency's argument that "merely volunteering was not sufficient to make an employee eligible for a [time-off award] under the law[,]" finding that employees were entitled to time-off awards for merely "volunteering[.]" Award at 10-11. Thus, the Arbitrator directed time-off awards without regard to whether the employees' performance contributes to the efficiency, economy, or other improvement of Government operations. Consequently, the award is inconsistent with § 4502(e) and § 451.104(a), and we set aside the award. [n11] 

V.      Decision

      The award is set aside.


File 1: Authority's Decision in 61 FLRA No. 33
File 2: Opinion of Member Pope


Footnote # 1 for 61 FLRA No. 33 - Authority's Decision

   Member Pope's dissenting opinion is set forth at the end of this decision.


Footnote # 2 for 61 FLRA No. 33 - Authority's Decision

   We note that, although NTEU filed the opposition, much of the background of this case involves three chapters of NTEU. We refer to the three chapters as the "local Chapters" throughout this decision.


Footnote # 3 for 61 FLRA No. 33 - Authority's Decision

   Although the Arbitrator and the parties refer to the parties' various national filing-season agreements as "LOUs," we refer to them as "national filing-season agreements" for clarity purposes.


Footnote # 4 for 61 FLRA No. 33 - Authority's Decision

   The local MOU between the Agency and NTEU Chapters 22 and 34 provided, in pertinent part:

As an incentive for volunteering, all volunteers who are utilized will receive one hour for every forty hours of customer service worked as a Time Off Incentive Award in accordance with NORD V, Article 18, Section 4. Volunteers who are selected for full time positions would receive a minimum of 12 hours. In order to receive the 12 hours, full time volunteers must serve in their details for the entire filing season. All other volunteers who are utilized will receive a minimum of 6 hours.

Exceptions, Attachments, Jt. Ex. 12(a) at 2. The separate local MOU between the Agency and NTEU Chapter 60 was essentially identical, except that an additional sentence was included between the last two sentences above. The additional sentence provided: "If the Agency determines during the filing season that a full time volunteer is no longer needed, the employee will receive a pro rata time off incentive award at the same 1:40 ration." Exceptions, Attachments, Jt. Ex. 13(b) at 4.


Footnote # 5 for 61 FLRA No. 33 - Authority's Decision

   The Arbitrator did not specify, and the record does not indicate, what law the Agency was citing.


Footnote # 6 for 61 FLRA No. 33 - Authority's Decision

   Article 18 of the national CBA provides, in part, that the Agency "agrees to grant time off to bargaining unit employees on the basis of their performance . . . ." Exceptions, Attachments, Jt. Ex. 3 at 65.


Footnote # 7 for 61 FLRA No. 33 - Authority's Decision

   The record does not contain a copy of this 2003 national filing-season agreement.


Footnote # 8 for 61 FLRA No. 33 - Authority's Decision

   Article 47, Section 4 of the national CBA provides, in pertinent part: "If either party is dissatisfied with the results of the bargaining/mediation/arbitration, then the dissatisfied party will retain their right to proceed to the FSIP for resolution of the matter." Exceptions, Attachments, Jt. Ex. 3 at 133.


Footnote # 9 for 61 FLRA No. 33 - Authority's Decision

   The Arbitrator also resolved additional matters that are not at issue here.


Footnote # 10 for 61 FLRA No. 33 - Authority's Decision

   5 U.S.C. § 4502(e) provides: "The Office of Personnel Management may by regulation permit agencies to grant employees time off from duty, without loss of pay or charge to leave, as an award in recognition of superior accomplishment or other personal effort that contributes to the quality, efficiency, or economy of Government operations." 5 C.F.R. § 451.104(a) provides, in pertinent part: "An agency may grant . . . time-off without charge to leave or loss of pay . . . on the basis of--

(1)      A suggestion, invention, superior accomplishment, productivity gain, or other personal effort that contributes to the efficiency, economy, or other improvement of Government operations or achieves a significant reduction in paperwork[.]"

Footnote # 11 for 61 FLRA No. 33 - Authority's Decision

   Accordingly, we find it unnecessary to resolve the Agency's ess